April 7, 2014

UEGF Held to Same Rules as Other Parties in PA Workers’ Comp

We have previously discussed the Pennsylvania Uninsured Employers Guaranty Fund (UEGF) and how that fund fills in when an employee is injured while working for an employer who failed to carry PA workers’ compensation insurance coverage. The UEGF is certainly an improvement over the way things used to be (when being injured working for an uninsured employer often resulted in no benefits at all), though there is a long way to go before the UEGF could be said to mirror the “remedial” nature of the Pennsylvania Workers’ Compensation Act, which is designed to benefit the injured worker. A recent decision of the Commonweal Court of Pennsylvania does take a step in the right direction.

One of the problems with the UEGF, as it currently functions, is that it operates, in some ways, above the law. For example, a workers’ compensation insurance carrier in PA can be assessed penalties if it violates the Pennsylvania Workers’ Compensation Act; the UEGF is not subject to penalties for any reason. A regular insurance company can be assessed counsel fees if it presents an “unreasonable contest;” again, the UEGF is immune to this risk. We have wondered where the lines would be drawn to hold the UEGF to any responsibility.

In Pennsylvania Uninsured Employers Guaranty Fund v. Workers’ Compensation Appeal
Board (Dudkiewicz)
, the injured worker fell from a roof while working for a subcontractor who failed to carry workers’ comp insurance. As often happens in cases like this, the UEGF filed a “Petition for Joinder,” which brings other parties into the case (other subcontractors or the general contractor), to give the Workers’ Compensation Judge (WCJ) a different party to assign liability.

A Petition for Joinder, by the rules, must be filed within 20 days of “the first hearing at which evidence is received regarding the reason for which joinder is sought.” The Joinder must also set forth the specific factual and legal basis for the Joinder. In this case, the WCJ found that the UEGF had knowledge of the need to pursue a Joinder on February 9, 2010 (when the injured worker testified about what companies were working on the jobsite), yet the UEGF did not file for Joinder against one party until May 27, 2010, and another on September 3, 2010. The WCJ dismissed both Joinder Petitions, as they were untimely, and failed to state the reasons for the Joinder. In the final decision, the WCJ granted the Claim Petition against the uninsured employer (and the UEGF). This was appealed to the Workers’ Compensation Appeal Board (WCAB), who affirmed the decision of the WCJ (A technical issue was remanded to the WCJ, but not relevant to our discussion).

On appeal to the Commonwealth Court of Pennsylvania, the decision of the WCJ was again affirmed. First, the Court denied the argument that testimony of a party is not “evidence” to trigger the 20 day period. The important thing, said the Court, was the testimony put the UEGF on notice of the need for a Joinder. Similarly, the Court denied the suggestion by the UEGF that it is not an “insurer” and should be held to a different rule (or, more like, should not be held to any rules). In a curt dismissal, the Court said, “We reject the suggestion that where UEGF fails to pursue its rights in a
timely manner, the property remedy is for this Court to disregard the policies
underlying joinder practice and the twenty-day limit set forth in §131.36(d).”

While we continue to wish the UEGF could be subject to the same standards the other insurance carriers must face, we are heartened to see some responsibility placed on them.

March 13, 2014

Doctor Performing IRE in PA Workers’ Comp Must Have Clinical Practice

We have previously discussed the concept of an Impairment Rating Evaluation (IRE) in Pennsylvania Workers’ Compensation. By now, our readers know that the IRE is a tool the workers’ comp insurance carrier can use to limit benefits in most cases to a maximum of around 11 and a half years. While the IRE is not designed to lead to a high burden for the insurance company, their success is not guaranteed.

Take, for example, the recent case of Verizon Pennsylvania Inc. v. Workers’ Compensation Appeal Board (Ketterer), decided by the Commonwealth Court of Pennsylvania. Here, the claimant hurt his neck and back in a work-related car accident, and began receiving workers’ compensation benefits.

After the injured worker received two years of total disability benefits, the comp insurance carrier obtained an IRE, which found that he had reached maximum medical improvement (MMI) and had a whole person impairment rating of 16%. Since this is lower than the ridiculously high standard of 50%, the insurance company filed a Petition to Modify benefits, changing the status from “total” to “partial,” and starting the clock on the entitlement to 500 weeks of partial disability benefits (the amount of the benefit does not change, just the duration). This IRE was performed by a physician approved by, and selected by, the PA Bureau of Workers’ Compensation (not the insurance carrier).

The Workers’ Compensation Judge (WCJ) denied the Petition for Modification because the physician who performed the IRE, despite being selected and approved by the Bureau, no longer had a clinical practice. Under the Pennsylvania Workers’ Compensation Act, a physician who performs an IRE must be “active in clinical practice for at least twenty hours per week.” The doctor here testified that her entire practice was now administrative or legal – she had no “patients.” The decision of the WCJ was affirmed by the Workers’ Compensation Appeal Board (WCAB).

On appeal to Commonwealth Court of Pennsylvania, the workers’ comp insurance carrier argued that “clinical practice,” as that term appears in the Act, does not require any patient contact, but simply being current in the medical community. The Court rejected this argument and affirmed the decision of the WCJ. The legislature’s use of the term “clinical” in the Act must be given meaning, the Court said. Unless otherwise explained, the Court felt that “clinical” must be taken to mean treatment or care to patients, something that the physician in this case lacked.

February 12, 2014

Medical Expert In PA Workers’ Comp Need Not Be Eyewitness To Claimant’s Disability Throughout Claim Petition

As a practical matter, a doctor is rarely present the instant a person gets injured at work. Similarly, the way litigation is done, a doctor has to testify while the injured worker is still disabled from work. Yet, despite these limitations, doctors routinely testify that the work injury led to the disability, and that the disability continues. But, of course, there are limits on how distant a doctor can be from the time at issue.

In Pennsylvania Uninsured Employers Guaranty Fund v. Workers’ Compensation Appeal Board (Bonner and Fitzgerald), the Commonwealth Court of Pennsylvania dealt with this issue. Here, a laborer fell from a roof while tearing off materials and suffered a skull fracture and an injury to his left eye. Since the employer had no Pennsylvania workers’ compensation insurance, a Claim Petition was filed against the PA Uninsured Employers Guaranty Fund (UEGF).

The injured worker was first seen by his doctor two months after the injury, and was only treated by that doctor for about six months. After that last date, the injured worker failed to appear for any more appointments. At the time of the last appointment, the doctor theorized that the injured worker would continue to improve and may be able to return to work in six weeks, pending confirmation of the improvement. The Workers’ Compensation Judge (WCJ) found the testimony of the injured worker, and his doctor, to be credible, and granted the UEGF Claim Petition, awarding ongoing total disability benefits. This decision was affirmed by the Workers’ Compensation Appeal Board (WCAB).

An appeal was made by the UEGF to the Commonwealth Court of Pennsylvania. The UEGF argued that since the injured worker’s medical expert could not comment on the disability status after the last date the injured worker was seen, the testimony of ongoing disability could not constitute substantial competent evidence. The Court disagreed with the UEGF and also affirmed the WCJ.

“(I)t is a fundamental principle of workers’ compensation law that the WCJ is the final arbiter of witness credibility and evidentiary weight,” the Court noted, adding, “the WCJ’s fact-finding authority includes the authority to draw reasonable inferences from the evidence.” The WCJ here credited the testimony of the injured worker and his treating physician, both of whom supported ongoing disability. As to the time after the last time the injured worker was seen (a fact, to some degree, inherent in every single workers’ comp case), the Court simply stated, “a claimant’s medical expert is not required to be an eyewitness to the claimant’s disability throughout the pendency of a claim petition.”

The Court was similarly unmoved by the testimony of the treating physician that he anticipated the condition of the injured worker would improve. This opinion was found to be just speculative, and unable to meet the requisite burden to stop disability, without the confirmation the doctor mentioned.

January 27, 2014

Chiropractic Treatment Not Reasonable and Necessary in PA Without Lasting Improvement Beyond Other Available Methods

We have discussed Utilization Review in our Blog on several occasions, many times dealing with whether “palliative” treatment (that treatment which relieves pain, but does not change or cure the condition) is reasonable and necessary. This issue, and the timing within which a Utilization Review Determination must be issued, was recently addressed by the Commonwealth Court of Pennsylvania.

In Womack v. Workers’ Compensation Appeal Board (The School District of Philadelphia), the Commonwealth Court of Pennsylvania affirmed a decision by a Workers’ Compensation Judge (WCJ) finding the chiropractic treatment not reasonable or necessary.

The injured worker suffered herniated discs in the lumbar spine, right medial meniscal
tear, right shoulder pain, and chronic lumbar pain with anxiety and depression, in the work injury. Seeking relief from her symptoms, the injured worker began treating with a chiropractor. As so frequently happens, the workers’ comp insurance carrier promptly filed for Utilization Review (UR). Under the Pennsylvania Workers’ Compensation Act, the filing of the UR allows the insurance carrier to stop paying for the treatment being challenged.

To make sure a UR is decided in a timely fashion, the Pennsylvania Workers’ Compensation Act contains specific time limitations on how long a Utilization Review Organization (URO) has to make a determination regarding whether the treatment at issue is reasonable or necessary. In this case, the facts make clear that the URO exceeded the permitted time limitations. The injured worker argued to the WCJ that the determination rendered by the URO should be thrown out, because it was untimely. In the alternative, the injured worker argued that the chiropractic treatment provided her relief, and should be found reasonable and necessary. The WCJ disagreed on both counts, and found the treatment unreasonable and unnecessary. Upon appeal, the Workers’ Compensation Appeal Board (WCAB) affirmed the decision.

The Commonwealth Court of Pennsylvania also affirmed. As to the issue of the timing, the Court said the WCJ was correct to not throw out the untimely UR because the URO was not a party and the delay was not the fault of the workers’ comp insurance carrier. Essentially, the Court felt it would be wrong to punish the insurance carrier for something beyond its control. The Court seemingly failed to recognize the severe prejudice to an injured worker, who goes longer without having treatment paid for. Given that the burden of proof on a UR is always with the insurance carrier, it would appear objectively, that the determination should have been thrown out as untimely. Either way, one party will be punished for something beyond its control; given the remedial nature of the Act, and the relative burdens, that party seemingly should have been the insurance carrier.

As to the merits of the chiropractic treatment, the Court said the WCJ was correct in his findings. The WCJ noted that relief from the chiropractic treatment was only temporary (which, by such a standard, all medications would be unreasonable and unnecessary). The Court also noted that the WCJ found, as the ultimate finder of fact, that the injured worker “’is able to perform the exact treatment she receives at (the chiropractor) from her own home’ and that she ‘admitted she feels the same amount of relief at home when performing those treatments as she does in the doctor’s office.’” While the former does not seem a valid reason upon which to deny treatment, admittedly, the latter could serve as a sufficient basis.

January 20, 2014

Notice of Ability to Return to Work Not Necessary in All Situations

We have dealt before with the Notice of Ability to Return to Work, and when such a document needs to be issued. The general rule is that the document must be issued by the PA workers’ compensation insurance carrier before the benefits can be modified or suspended. As with any rule, there are exceptions, such as when the injured worker already has knowledge of the work capabilities.

Recently, in School District of Philadelphia v. Workers’ Compensation Appeal Board (Hilton), the Commonwealth Court of Pennsylvania addressed whether a Notice of Ability to Return to Work is necessary during the litigation of a Claim Petition.

This case concerned a teacher whose stressful environment caused injury to her vocal cord, and also aggravated her pre-existing lupus (remember that stress can lead to a work injury, without proving “abnormal working conditions,” when the stress results in a physical manifestation). A Notice of Denial (NCD) was issued by the workers’ comp insurance carrier. A few months later, the injured worker was offered a job at a less stressful school, but she declined. Shortly after that, the injured worker filed a Claim Petition. A Notice of Ability to Return to Work was never issued.

After litigating the case before a Workers’ Compensation Judge (WCJ), the Claim Petition was granted. However, the WCJ suspended benefits the date the new job was offered (since there was no medical evidence that the injured worker was not capable of performing the job at the new, less stress, school). The Workers’ Compensation Appeal Board (WCAB) affirmed the granting of the Claim Petition, but reversed the WCJ, finding that benefits should not have been suspended.

Upon further appeal, the Commonwealth Court of Pennsylvania affirmed the granting of the Claim Petition, but reversed the decision of the WCAB, agreeing with the WCJ that benefits should be suspended based on the offer of the less stressful job. The burden to prove that the loss of earnings is related to the work injury remains with the injured worker throughout a Claim Petition. The evidence did not show that the injured worker was not capable of performing this new job. Since the injured worker was not yet entitled to benefits, the Court felt that a Notice of Ability to Return to Work was not necessary. Specifically, the Court noted, “the main reason for issuance of a Notice of Ability to Return to Work, the need to protect a claimant from a haphazard suspension of
benefits without proper notice, was not present.” As such, the workers’ comp insurance carrier had no duty to issue a Notice of Ability to Return to Work.

January 15, 2014

Injured Workers in PA Have 60 Days to Challenge IRE or Potentially be Forever Barred

Sometimes, we will meet with an injured worker who is already receiving PA workers’ compensation benefits. The injured worker may ask, “Why do I need to have an attorney if I am already receiving benefits?” The answer is that the rights of the injured worker in Pennsylvania can be impacted by inaction as much as by action. That paper which is disregarded can come back to haunt an injured worker for years.

An example of this situation came in Wingrove v. Workers’ Compensation Appeal Board (Allegheny Energy). Here, the employee injured his back in 2002. The injury was accepted as a “low back strain.” The injured worker continued to work until May 5, 2003, when he had lumbar surgery (it is amazing that workers’ comp is the only area where a person needs surgery for a “strain” – unless, perhaps, the workers’ comp insurance carrier accepted the injury as something less than it really was, of course).

In 2005, after the injured worker received total disability workers’ compensation benefits for 104 weeks (two years), an Impairment Rating Evaluation (IRE) was performed and a “whole body impairment rating” of 11% was found. As we have previously discussed, an IRE resulting in an impairment rating of less than 50% may result in a shifting of benefits from total to partial status. That is what happened here; the IRE was not challenged.

In 2009, the injured worker filed three Review Petitions. One was to add depression and other psychiatric injuries, and chronic and severe low back pain. The second was to add post-laminectomy syndrome and chronic L5 radiculopathy. Finally, the third was to challenge the 2005 IRE since it did not account for these conditions.

After hearing the evidence, the Workers’ Compensation Judge (WCJ) granted the first two Review Petitions (except for one aspect of the alleged psychological injury), but denied the third. The WCJ found that the 2005 IRE could only be challenged within 60 days of when it was issued. Therefore, the only way for the injured worker to change the status back to total would be to prove he had a whole body impairment rating of at least 50%. This decision was affirmed by the Workers’ Compensation Appeal Board (WCAB).

The Commonwealth Court of Pennsylvania affirmed the decision of the WCJ. Once the injured worker failed to challenge the IRE within 60 days of it being issued, the IRE became “beyond challenge.” Since the injured worker then failed to prove that he was at least 50% impaired, the status could not be changed, despite the addition of these other work-related conditions. While the new conditions would now count toward rising to the 50% level, that absurd a standard remained out of reach. Had the injured worker been represented in 2005, the IRE could have been challenged and set aside, since it did not include the entire extent of the true work injury. And THAT is why all injured workers should have attorneys.

January 6, 2014

PA Workers’ Comp Judge Erred in Dismissing Where No Prejudice Shown

Workers’ Compensation Judges (WCJs) in Pennsylvania have great latitude and authority vested in them to perform their jobs. They are the ultimate finders of fact, and determiners of credibility. In running their courtrooms, WCJs may extend or shorten deadlines for the submission of evidence, depending on the circumstances. However, the authority granted to a WCJ does have its limits.

In Wagner v. Workers’ Compensation Appeal Board (Ty Construction Co., Inc.), the Commonwealth Court of Pennsylvania reversed the decision of a WCJ to dismiss a Claim Petition because the injured worker’s attorney failed to meet the deadline for obtaining its medical evidence.

The case was a complicated one, involving lung cancer allegedly stemming from an exposure to paint chemicals. After the Claim Petition was filed, and a hearing took place, the attorney for the injured worker learned that the cancer specialist was refusing to be involved in any type of litigation. This meant the attorney had to locate another expert witness, and get a deposition scheduled. Eventually, another expert was obtained and a deposition was scheduled. This deposition was then cancelled at the request of the insurance carrier’s attorney, so they could get a report from their medical expert in advance of the deposition. When the attorneys appeared back in from of the WCJ, upon motion of the insurance carrier’s attorney, the WCJ dismissed the case because the injured worker’s attorney did not have his deposition done in time. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

Commonwealth Court of PA reversed the WCJ. Firstly, the attorney for the injured worker had the deposition scheduled and cancelled the deposition at the request of the other attorney. Secondly, the insurance carrier did not even have their own medical report yet, so there was no unreasonable delay by the injured worker. Thirdly, the insurance carrier showed no prejudice by the delay (since they had things yet to accomplish also). The Court said prejudice is certainly a factor, and, unless the injured worker is negligently or purposely delaying the case, there should not be a dismissal without a finding of prejudice. The case was remanded back to the WCJ to litigate the merits of the Claim Petition.

December 20, 2013

Payment for Medical Expenses Denied Because Records Not Given for Utilization Review

One thing common to every work injury in Pennsylvania is that the injured worker needs medical treatment. The importance of being able to get this treatment, and having it paid for by the workers’ comp insurance carrier, is obviously on the mind of any injured worker. This explains why Utilization Review (UR), the process of determining whether treatment is reasonable and necessary (and, as a result, whether the workers’ compensation insurance carrier has to pay for such treatment), is such a frequent topic on this blog.

Though either side can start the UR process, it is typically filed by the workers’ comp insurance carrier, alleging that treatment to the injured worker is not reasonable or necessary. Once the Pennsylvania Bureau of Workers’ Compensation assigns a Utilization Review Organization (URO) to review the file, the healthcare provider whose treatment is at issue is sent a request from the URO for its records.

We already know from cases decided by the Commonwealth Court of Pennsylvania that the injured worker is sunk if a provider fails to give his records to the URO. In this situation, a UR is not actually performed, so the injured worker cannot appeal a negative result. Considering a UR could theoretically be successful solely on the testimony of the injured worker, we find these cases to be terribly unfair and illogical.

Recently, the Commonwealth Court of Pennsylvania addressed a situation where there were no records to send. In Leventakos v. Workers’ Compensation Appeal Board (Spyros Painting), the injured worker moved to Greece after the work injury (which led to a stoppage of wage loss benefits, but that is a topic for another day). When a UR was filed against the treating doctor in Greece, the doctor drafted a “treatment summary” describing the treatment, and sent it to the URO. The doctor also spoke to the reviewer at the URO on the telephone. There were no records, such as office notes or treatment notes, to send. The reviewer employed by the URO concluded the treatment at issue was not reasonable or necessary due to the “lack of documentation.”

Claimant then filed a Petition for Review of Utilization Review Determination. After hearing the facts, the Workers’ Compensation Judge (WCJ), consistent with the County of Allegheny v. Workers’ Compensation Appeal Board case, decided by Commonwealth Court of Pennsylvania in 2005, dismissed the Petition because she lacked jurisdiction (since there was no Utilization Review Determination done for the WCJ to review). This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

On further appeal to the Commonwealth Court of Pennsylvania, the decision of the WCJ was again affirmed. The Court said the PA Workers’ Compensation Act requires the “records” to be documents that were prepared contemporaneously with the treatment. A “treatment summary” prepared months after the treatment at issue does not rise to this level. The Court was unmoved by the fact that it is typical in Greece to not keep treatment notes, so there were truly no records for the doctor to send.

One aspect not discussed was how the doctor in Greece submitted his bills to the workers’ comp insurance carrier. Under the Pennsylvania Workers’ Compensation Act, the bills must be submitted on the appropriate forms, with supporting documentation. If this doctor did not properly submit the bills, it is unclear whether the insurance company even had an obligation to pay, perhaps making all of this a moot point. Since the insurance carrier did start the UR process, however, this is not relevant here.

As bad as the County of Allegheny v. Workers’ Compensation Appeal Board case is (and that’s plenty bad), this may be even worse. Here, the doctor did everything in his power to provide the URO with information upon which it could base a meaningful review. Through this loophole, the reviewer elected to just ignore all of this information and say there was insufficient documentation. As noted above, this unfairly restricts the injured worker from submitting any evidence, even his or her own testimony. Since an injured worker could prevail in a Petition for Review of Utilization Review Determination solely through his or her own testimony, it continues to strike us as absurd that the injured worker is denied this opportunity.

December 10, 2013

Employee Verification Forms Must be Fully Completed to Avoid Suspension of Benefits

When an injured worker in PA is receiving, or attempting to receive, workers’ compensation wage loss benefits, the insurance carrier can send “verification forms” every six months. These forms require the injured worker to certify whether he or she is working, along with a few other questions. If the injured worker does not complete and return the forms, the insurance carrier may suspend payment until the forms are returned.

In McCafferty v. Workers’ Compensation Appeal Board (Trial Technologies, Inc.), the Commonwealth Court of Pennsylvania dealt with two issues regarding the completion and return of these verification forms. First, there was a question whether the forms could be returned by fax. Second, if a form is returned filled out and signed, but not dated, has the form been “returned?”

As to the first question, the Court found that, given today’s level of technology, submission of the verification forms by fax is acceptable. However, with regard to the second issue, the Court was more strict. The form is not “completed” unless it is dated. The date established by the faxed transmission is not necessarily the date the form was filled out. Since the forms can be required only every six months, the insurance carrier is entitled to know when the information was correct. As such, the Court found the verification form must be filled out, signed and dated to discharge the obligation of the injured worker.

Interestingly, the insurance carrier required the form be dated because it believe “a claimant signing the Form LIBC-760 with false information cannot be prosecuted under 18 Pa. C.S. §4904 if the form is signed without a date.” We find this rather humorous, since we have had no less than three occasions when the employer or the insurance adjuster filed an affidavit with a Notification of Suspension, stating our client had returned to work, when, if fact, the client did no such thing. On each occasion, when we brought this act of fraud to the attention of the Workers’ Compensation Judge, it was met with a mere shrug. It would appear insurance fraud is only of interest when it is the injured worker who is being suspected. We think the goal of reducing fraud in the system is noble, but one cannot escape the thought that the application is somewhat biased.

December 2, 2013

Jobs Listed in Labor Market Survey Must be “Available” to Injured Worker in PA

Back in 2010, we discussed the case of Phoenixville Hospital v. Workers’ Compensation Appeal Board (Shoap). In this decision, the Commonwealth Court of Pennsylvania found that jobs listed in a Labor Market Survey (LMS) did not have to actually be available, since they were merely examples of jobs existing in the community. Therefore, the Court found the fact the injured worker applied for all of the jobs and was not offered employment by any was irrelevant. Upon further appeal, however, the Supreme Court of Pennsylvania, with the help of the Pennsylvania Association for Justice, has now reversed this decision.

As you may recall, a LMS containing five jobs was prepared in this case. The injured worker testified that she applied for each position listed in the LMS and received no offers of employment. When the matter was litigated before a Workers’ Compensation Judge (WCJ), this testimony was found credible. Therefore, the WCJ denied the Petition for Modification filed by the workers’ comp insurance carrier. Since the jobs were not offered to the injured worker here, they were found not to be available to her. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

Commonwealth Court of Pennsylvania, however, reversed, holding that the availability of these exact positions was irrelevant. As long as the jobs were open and generally available when the vocational expert located them, the LMS was sufficient, said the Court. Whether the injured worker actually was able to apply for, and get, those jobs was of no importance.

The Supreme Court of Pennsylvania then accepted appeal, and recently reversed this decision. Noting, “the proof required to reduce or suspend a claimant’s benefits must rest upon the existence of meaningful employment opportunities, and not the simple identification of jobs found in want ads or employment listings,” the Court found jobs listed in a LMS must be open and potentially available to the injured worker. Thus, the experience of the injured worker in applying for such positions can cast doubt on whether the positions were actually available (or whether they were even vocationally appropriate). Moreover, since the goal of the law is to provide injured workers with gainful employment, the positions in an LMS should “remain open until such time as the claimant is afforded a reasonable opportunity to apply for them.” All of this means the testimony of the injured worker is highly relevant to whether jobs in a LMS are sufficient to support a Petition for Modification.

November 25, 2013

PA Workers’ Comp Insurer Can Use Labor Market Survey Without Proving No Job Available at Employer

In 1996, the Pennsylvania Workers’ Compensation Act was amended, in a piece of legislation known as Act 57. In many ways, the law became much less friendly for the injured worker in PA. One of the changes was the creation of the “Labor Market Survey (LMS),” also known as an “Earning Power Assessment (EPA).”

While the old law had required the insurance carrier to show the existence of an actual job which would be available to the injured worker in order to reduce or suspend an injured worker’s benefits, Act 57 allows the insurers to use general, hypothetical listings instead (somewhat like they do for Social Security Disability). While this certainly smacks of unfairness, the legislation also required an employer to first offer a job to the injured worker, if available, before the insurer could resort to the LMS process. This made sense, of course, since a return to the Employer would be most beneficial to all.

Exactly how hollow a requirement this is has now been fully explained by the Commonwealth Court of Pennsylvania in Reichert v. Workers' Compensation Appeal Board (Dollar Tree Stores). After the injury, the injured worker had a LMS performed. A Petition for Suspension shortly followed.

While the matter was being litigated before the Workers’ Compensation Judge (WCJ), the Employer testified that nobody asked him to see if any jobs were available (but, there were none available, he then added). The vocational counselor who prepared the LMS agreed that he never spoke to the Employer and only spoke to the insurer, to confirm no jobs were available, after the LMS was done. The WCJ found both credible and granted the Suspension Petition. This was affirmed by the Workers’ Compensation Appeal Board.

Upon appeal to the Commonwealth Court of Pennsylvania, the decision was affirmed. The Court found no harm in the fact that the Employer/insurer totally ignored the spirit, if not the letter, of the PA Workers’ Compensation Act. The idea, of course, is to try to place the injured worker back with the place where he or she had previously worked. And that would need to be done before trying the LMS route at all. It is an absurd result to say that the Employer/insurer met their requirement, when they admit they did not even check for an open job until the LMS was already done. This sends a clear message that the “checking for a job” is mere lip service, and none is even expected.

In fact, the Court proudly notes that, “we have held that an employer does not have the burden to prove the non-existence of available work at its own facility as a necessary element of the modification petition.” Or, said the other way around, the injured worker bears the burden to prove a job exists with the Employer, though it is the Employer who is obviously the best party to have the ability to prove or disprove such a fact. We are at a loss to explain the fairness in placing such an impossible burden on the injured worker, when showing there is no available job would be so easy for the Employer. To us, the spirit, and the letter, of the law requires exactly what the Court contends it does not.

The Court then notes that the injured worker could always point to a specific job the Employer was actively looking to fill. Since many of our clients lack psychic powers, and law firms do not have limitless investigative budgets, the Court should know that the ability to point to a specific available job is very difficult for the injured worker to prove.

November 21, 2013

PA High Court Says Armed Robbery in PA Liquor Stores Just Part of Normal Work Day

As we have noted on several occasions, our firm represents a clerk who worked at a PA Liquor Store, operated by the Pennsylvania Liquor Control Board (PLCB). The store, which had no guard on duty (whether armed or not), was robbed and a handgun was pointed at our client’s head. As a result, our client suffered post-traumatic stress disorder (PTSD).

The PLCB denied workers’ compensation benefits to our client. Oh, the PLCB did not dispute the robbery took place. Nor did the PLCB deny that our client was disabled from work as a result of the PTSD (the medical expert retained by the PLCB agreed that our client could no longer perform the duties required of a clerk at that store). No, the sole basis of the denial was that an armed robbery of a PLCB store was not “abnormal.” As we have discussed in previous blog entries, a psychological injury, such as PTSD, requires abnormal working conditions.

When we litigated the Claim Petition before a Workers’ Compensation Judge (WCJ), we were successful and the Claim was granted. The WCJ found that all of the training materials used by the PLCB said that armed robberies were “infrequent” and “unlikely.” The fact that the manager of the PLCB store was not even aware of the “high alert” process was found by the WCJ to further show armed robbery at this store was “abnormal.” Finally, the WCJ noted that the PLCB did not feel that a guard, even unarmed, was necessary. Finding that this armed robbery was abnormal, the WCJ granted the Claim Petition.

On appeal, the Workers’ Compensation Appeal Board (WCAB) reversed. The simple fact that armed robbery was incorporated into the training process meant that such an event was foreseeable. And, the WCAB concluded, if it is “foreseeable,” it cannot be “abnormal.” (Since almost anything could be potentially or theoretically foreseen, this argument could completely eliminate psychological injuries in Pennsylvania). The Commonwealth Court of Pennsylvania agreed and affirmed the decision of the WCAB.

Outraged, we filed a Petition for Allowance of Appeal with the Pennsylvania Supreme Court. After all, the WCJ made specific findings which supported that the armed robbery in this case was an “abnormal working condition” and the Courts are fond of noting that WCJs are the final arbiters with regard to findings of fact. Further, under the theory of the WCAB and Commonwealth Court, a mention in training makes an event normal, regardless of how often it actually happens in practice (meaning the Titanic hitting the iceberg, the tsunami hitting Japan, and the school shootings in CT were all normal events).

We are deeply saddened to report that our Petition for Allowance of Appeal has been denied by the Pennsylvania Supreme Court. What it appears we can take from this decision is that the findings made by a WCJ are actually not the final word, that the term “abnormal working condition” is to be read very strictly in PA, and that you better be armed if you are crazy enough to ever set foot in a PLCB store.

November 18, 2013

PA Workers’ Comp Insurance Carrier Allowed to Take Credit for Overpayment

Nobody wants to get hurt at work. Suffer from the pain and physical limitations? Not a good time. Aside from medical treatment for the work injury, the injured worker in PA generally receives about two-thirds of his or her salary. No pain and suffering is ever received, contrary to other types of personal injury matters. But, gosh, if there is a suggestion that an injured worker in Pennsylvania has received “unjust enrichment,” the PA workers’ compensation insurance industry is up in arms.

The Commonwealth Court of Pennsylvania recently addressed the issue of whether the workers’ comp insurance carrier can obtain recoupment of an overpayment in Commonwealth of PA DOT v. Workers’ Compensation Appeal Board (Noll). Here, the injured worker hurt his left shoulder in 1995.

After the injury, there were periods in which the injured worker was back at work, and periods in which he was out. After one of these periods, the injured worker filed a Petition alleging the workers’ comp insurance carrier paid him less than he was due. The Workers’ Compensation Judge (WCJ) granted the Petition, agreeing the insurance carrier did not pay correctly. In addition, the WCJ found that the workers’ comp insurance carrier did not have a “reasonable basis” to contest to this Petition, and ordered that they pay “quantum meruit [QM](fees paid to an attorney based on the time the attorney spent and the character of the work required) fees of 20% ‘of all past due and owing benefits directly to Claimant’s counsel not [to be deducted] from Claimant’s proceeds.”

Misunderstanding the decision of the WCJ, the workers’ comp insurance carrier continued to pay a 20% attorney fee over and above the payments to the injured worker for a period of several years, accumulating an overpayment of more than $30,000. The workers’ comp insurance carrier filed a Petition to Review, seeking a future credit to recoup this overpayment. The injured worker argued that, since the overpayment resulted from the unilateral mistake of the insurance carrier, they were not entitled to any relief.

The WCJ denied this Petition, finding, first, that he ordered the injured worker to be paid the full amount ongoing in the previous decision, and, second, that recoupment of an overpayment can only be obtained if “there has been a mathematical miscalculation or a mistake in the agreement by which the claimant receives compensation.” Finding, again, that the insurance carrier had no reasonable basis for the Petition, he ordered QM attorney fees paid to the injured worker’s attorney.

Upon appeal, the Workers’ Compensation Appeal Board (WCAB) affirmed the decision denying the Petition to Review, though they found the WCJ was incorrect on each of his bases. The WCAB ultimately concluded, however, that the workers’ comp insurance carrier failed to prove it made the payments under a “mistaken belief,” as would be required for the insurer to win. The award of QM attorney fees was reversed, as the contest was found by the WCAB to be reasonable.

The Commonwealth Court of Pennsylvania first agreed with the WCAB that the WCJ erred by saying the injured worker should have continued to receive 100% of the workers’ compensation benefits; an award of QM must be based on actual work done and cannot be an ongoing amount. The injured worker should only have been receiving ongoing benefits in the amount of 80%, with 20% being deducted and paid to his attorney. Thus, the Court concluded that there was an overpayment.

Next, the Court reviewed whether the insurance carrier was entitled to a recoupment of this overpayment. Recognizing “there are circumstances where an employer can recoup an overpayment directly from the claimant, i.e., to prevent unjust enrichment or a double recovery,” the Court found the WCAB erred, and said the insurer was entitled to recoupment of the overpayment in this case. Specifically, the Court said:

Employer proved that it paid the $509 per week undiminished by counsel fees under the mistaken belief that those payments were necessary to discharge its duty under the WCJ’s orders. This entitles it to a credit against Claimant’s future workers’ compensation benefits to prevent unjust enrichment . . . “

The Court remanded the case for a determination of the amount to be deducted from the injured worker’s checks which would be “just under the circumstances and manageable for Claimant.” Since the insurer did prevail, the dismissal of the QM fees by the WCAB was affirmed.

For us, as attorneys who represent injured workers in PA, this decision was disappointing. There was no “mistaken belief” of anything by the insurer – the wording in the WCJ’s original decision was clear that the 20% paid over and above was for past due benefits. The insurer simply screwed up and made voluntary payments it was not required to make. The adjuster erred and the insurer lacked the internal controls to notice, let alone prevent, such a mistake. That’s a shame, and they were correct to stop doing that. But, to use the Court system to rescue them from their own incompetence? That seems rather misplaced. Was the injured worker unjustly enriched? Hard to say – again, as with every injured worker, he did not ask to be hurt, to suffer from the pain and to be rendered disabled. How much did the CEO of that insurer make last year? Was that not an unjust enrichment in the eyes of many?

November 11, 2013

There Can be “Abnormal Working Conditions” for a Police Officer in Pennsylvania

One of our frequent topics on this blog concerns how psychological injuries are handled (or, more appropriately, mishandled) under the Pennsylvania Workers’ Compensation Act. Indeed, we personally have a case in which we have requested appeal to the Supreme Court of Pennsylvania addressing the burden of proof in such a case. As we have previously described, to obtain workers’ comp benefits in PA for a mental injury, from a mental stimulus, the injured worker must prove there were “abnormal” working conditions present, and that this standard varied by the occupation of the injured worker.

Cases in the Pennsylvania appellate courts have made it clear that certain occupations, such as firefighters, police officers, and other first responders, have an extremely difficult burden to prove something is “abnormal,” given how much extreme stress and shock are associated with those types of jobs. Recently, though, the Supreme Court of Pennsylvania reversed the lower tribunals, and found that a police officer was exposed to abnormal working conditions.

In the case of Payes v. Workers’ Compensation Appeal Board (Commonwealth of PA State Police), the injured worker, a state police officer, struck and killed a woman with his patrol car. The woman was apparently attempting to commit suicide by this act. As a result of this incident, the injured worker developed post-traumatic stress disorder (PTSD), and was no longer able to function as a police officer.

A Claim Petition was filed and litigated before a Workers’ Compensation Judge (WCJ). Having heard all of the evidence, the WCJ granted the Claim Petition. The WCJ determined that, while a state trooper can expect to be “exposed to vehicle accidents, mayhem, bodily injuries, death, murder, and violent acts in the normal course of their duties”, “State Troopers are not in the normal course of their duties exposed to the circumstances that occurred in this case.”

The Workers’ Compensation Appeal Board (WCAB) reversed this decision, finding, “while being involved in a fatal accident may be traumatic and not routine for a state trooper, we cannot agree that this incident constitutes an abnormal working condition given the nature of claimant’s stressful and perilous profession.” The Commonwealth Court of Pennsylvania affirmed the WCAB.
Appeal was accepted by the Supreme Court of Pennsylvania, and there the decision of the WCAB and Commonwealth Court was reversed, reinstating the decision of the WCJ, which had granted the Claim Petition. The Supreme Court observed that the findings of the WCJ, that it is not normal, even for a state trooper, to have a woman kill herself by running in front of the patrol car, was supported by the evidence and supported the finding that this was an “abnormal working condition.” Both the WCAB and Commonwealth Court broke this incident into subparts, each of which in isolation could be normal things. However, this incident, viewed as a whole, is “abnormal.” Specifically, the Court said, “The WCJ found, based on the credible evidence before him, that the type of incident in this case was not one to which state troopers are normally exposed.”

In an interesting footnote, the Court also added, “The fact that another state trooper had once struck a pedestrian does not make the incident here a ‘normal’ working condition. Abnormal working conditions need not be ‘unique’ working conditions.”

Given the fact that our case is currently awaiting a decision on our Petition for Allowance of Appeal, we believe it best not to comment in too much detail about this case, and how it may impact the case we have pending. We will, however, observe that this decision by the Supreme Court of Pennsylvania strikes a blow for a humanitarian element that we always hope to find in the Pennsylvania Workers’ Compensation Act.

November 4, 2013

Aging Can Be a Defense to Noise-Induced Hearing Loss Claim

There are some injuries in Pennsylvania’s workers’ compensation laws for which no showing of disability is necessary to obtain an award of benefits. These cases, called “specific losses,” include facial disfigurement and loss of use of a body part. One of the types of cases in this category is a claim for loss of hearing, as a result of excessive noise exposure at work.

Generally, the injured worker need only prove that he or she suffers from a permanent hearing loss of at least 10 percent, and that the hearing loss was caused by the long-term exposure to hazardous occupational noise at work. Whether the occupational noise was “hazardous” is not part of the burden faced by the injured worker; instead, that would be an affirmative defense the workers’ compensation insurance carrier could offer. A previous Pennsylvania Supreme Court case from 2000, LTV Steel Co. v. Workers’ Compensation Appeal Board, established that no deduction can be made from the hearing impairment for the normal aging process.

Recently, the Commonwealth Court of Pennsylvania faced some of these issues in McCool v. Workers’ Compensation Appeal Board (Sunoco, Inc.). Here, the injured worker was employed as a firefighter for the City of Philadelphia from 1983 to 1998, then as a refinery operator for Sunoco from 2003 to 2008. In 2001, the injured worker had an audiogram done, which showed less than a 10% hearing impairment. Nearly annual audiograms then, starting in 2002, showed, according to the case, “pre-existing hearing loss that continued to accelerate across all frequencies.”

In 2010, the injured worker was referred by his attorney to Dr. Aaron Shapiro, who performed an audiogram and prepared a report stating that he had an occupational hearing loss that was attributable to his firefighter duties. About two months later, Dr. Shapiro prepared a second report, now stating that the hearing loss was due to the noise exposure at the Sunoco refinery.

After the second report authored by Dr. Shapiro, the injured worker filed a Claim Petition against Sunoco for his loss of hearing. Before the Workers’ Compensation Judge (WCJ), the injured worker described the excessive noise to which he was exposed at the refinery. The WCJ found both the injured worker, and Dr. Shapiro, not credible and denied the Claim Petition. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).
Upon further appeal, the decision was affirmed by the Commonwealth Court of Pennsylvania. The injured worker argued that the WCJ improperly placed the burden upon him to prove that the noise was “hazardous” and that the WCJ erred in crediting the opinion of the doctor offered by the workers’ comp insurance carrier, since that doctor attributed the hearing loss to normal aging process.

The Court went through a thorough analysis of the entire arguments. Frankly, since the injured worker had the burden of proof, and the WCJ found both Claimant and his medical expert not credible (and gave sufficient reason for such findings), the analysis really could have stopped there. That was really the end of the case. The arguments advanced by the injured worker dealt with finding the doctor offered by the workers’ comp insurance carrier credible – however, even if WCJ found both experts not credible, the injured worker would have lost, since he bore the burden of proof.

Regardless, the Court explained that the doctor offered by the workers’ comp insurance carrier did not apportion some of the loss of hearing to the aging process (as the previous case prohibits), but testified that the loss in hearing was not due to the occupational noise exposure. This makes the opinion proper under the law. Mention was also made by the Court that the injured worker was aware of the loss of hearing prior to 2010 (as the WCJ had found), making an unstated reference that the injured worker did not provide timely notice of the work injury.

October 30, 2013

Massage Therapy Reasonable and Necessary Treatment for Injured PA Worker

We have discussed “Utilization Review” (UR) on this blog many times. This is the tool used by either party (usually the workers’ compensation insurance carrier) to determine whether any particular treatment is “reasonable and necessary.” To start the UR process, the insurance company must agree the treatment is related to the work injury.

The Courts have made clear that treatment need not cure a condition to be “reasonable and necessary,” stating that relieving the symptoms of an injured worker can be enough. The burden to prove treatment is not “reasonable and necessary” remains with the workers’ comp insurance carrier throughout the UR process.

Most often, we see UR in situations involving treatment which is “palliative” (relieving symptoms) rather than “curative.” This could be concerning chiropractic treatment, therapeutic modalities, medications or injections. An interesting facet, discussing massage therapy, was addressed recently by the Commonwealth Court of Pennsylvania in Moran v. Workers' Compensation Appeal Board (McCarthy Flowers).

In this case, the injured worker suffered a lumbar disc herniation at the L4-L5 level. The parties settled the “indemnity” aspect of the case (the wage loss part) by Compromise and Release Agreement, but left the medical benefits open. Massage therapy was prescribed by the treating physician, and was rendered by a licensed practical nurse (LPN). The workers’ compensation insurance carrier filed for UR, alleging the massage therapy was not reasonable and necessary. A Utilization Review Determination was issued, which found the treatment not reasonable and necessary because “massage therapy specifically does not fall within the scope of a licensed practical nurse.” The Determination dealt solely with the qualifications of the LPN and did not address the merits of whether the massage therapy itself was reasonable and necessary.

This adverse Determination was appealed by the injured worker and litigated before a Workers’ Compensation Judge (WCJ). After hearing the evidence and arguments by the parties, the WCJ granted the UR Petition, finding that the LPN was a licensed health care professional, who did meet the definition of a health care provider under the Workers’ Compensation Act. The massage therapy was rendered under the orders of the treating physician. The WCJ, therefore, found the argument on qualifications misplaced. The WCJ went on to note that the Determination did not address the merits of the treatment at issue, but the WCJ found the massage therapy reasonable and necessary.

On appeal, the Workers' Compensation Appeal Board (WCAB) reversed this decision. Citing a previous Commonwealth Court case called Boleratz v. WCAB (Airgas, Inc.), the WCAB said that massage therapy provided by an LPN is not reasonable and necessary (again, going back to qualifications). Specifically, the WCAB said, “There is nothing in the record to support Claimant’s assertion that massage therapy is within the scope of her practice as an LPN.”

The Commonwealth Court of Pennsylvania, however, agreed with the WCJ and reversed the WCAB. The Court distinguished Boleratz, by noting that the person providing the massage therapy in that case was not a “duly licensed medical practitioner” and, on that basis, the Pennsylvania Bureau of Workers’ Compensation refused to even perform UR. In this case, though, the LPN was a health care provider, as that term is defined in the PA Workers’ Compensation Act. The massage therapy was prescribed by a physician. The UR determination did not cite any authority for the proposition that massage therapy was not within the scope of an LPN’s duties. Since the burden of proof remains with the workers’ compensation insurance carrier, “this Court agrees with the WCJ that Employer failed to establish that massage therapy did not come under the duties of an LPN.”

The Court then addressed that the UR Determination failed to actually deal with the merits of the issue – whether the massage therapy itself was reasonable and necessary. Noting, again, that the workers’ comp insurance carrier had the burden of proof, the Court quickly dismissed this argument as well. “Also, because Employer failed to address the merits of whether the treatment rendered by Nurse Kozlowski was reasonable and necessary, Employer does not prevail on that basis either.”

October 23, 2013

Cumulative Trauma Injury Not Necessarily Tagged to Last Employer

Often, a work injury in Pennsylvania is not a sudden occurrence – not a fall, or lifting an item, or a car accident, but instead it is “cumulative trauma,” an injury that takes place over time. Perhaps someone who does data entry or assembly work, doing repetitive motions with their hands, develops carpal tunnel syndrome or ulnar neuropathy. Maybe a construction worker, or factory worker, suffers low back problems from years of heavy lifting. Cumulative trauma injuries can take many forms. The workers’ compensation insurance carriers in PA routinely deny such claims, but, do not be misled, cumulative trauma injuries are every bit as real, and those who suffer them every bit as deserving of benefits, as any other work injury in Pennsylvania.

Which employer is responsible, and the timing of notice are two of the major issues in these cases, and both were present in A & J Builders, Inc. v. Workers’ Compensation Appeal Board (Verdi), recently decided by the Commonwealth Court of Pennsylvania. Logic might suggest the responsible employer is simply the last employer, since, with cumulative trauma, every day is a new injury, the date of injury is usually the last day worked. But, as we always see in PA workers’ comp, the easy explanation is not always the correct one.

The injured worker in Verdi was a carpenter. He worked for A & J Builders, Inc. from 2004 to 2007. During this time, he developed right knee pain. By the time he left A & J, the right knee caused him chronic pain. Regardless, he then worked three days in 2008 for another contractor before being laid off. In March, 2009, Claimant saw a new doctor and was diagnosed with “chronic repetitive work-related chondral wear in the patellofemoral joint on his right knee.” This was the first time the injured worker was actually told the problem was related to work. Notice of the work injury was not provided until a Claim Petition was filed in July, 2009 (well over the 120 day period within which notice of a work injury is typically required).

The Workers’ Compensation Judge (WCJ) found that notice was timely, after Claimant was told that he had a work injury, and that the work at A&J materially aggravated the underlying problems in the right knee. Since the injured worker only was employed by the other contractor for three days, the WCJ found that that work did not materially aggravate the condition. As such, the WCJ granted the Claim Petition against A&J. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

On further appeal, Commonwealth Court of Pennsylvania affirmed. The Court found notice timely under the “discovery rule.” In citing prior case law, the Court explained, “[T]he discovery rule, as incorporated by the legislature in [Section 311], calls for more than an employee’s suspicion, intuition or belief; by its terms, the statute’s notice period is triggered only by an employee’s knowledge that [he] is injured and that [his] injury is possibly related to [his] job.” In other words, until a doctor actually told the injured worker that the work duties had caused his condition, the time to give notice did not yet start.

As to the finding that the responsible employer was A&J, rather than the last contractor, the Court observed that the credibility determinations of a WCJ cannot be disturbed, and that a WCJ is permitted to accept or reject the whole, or any part, of the testimony, including that of expert witnesses. Because there was testimony that the three days of work at the last contractor did not materially aggravate the condition, the finding against A&J was proper.

October 16, 2013

Disability Pension Does Not Prove Injured Worker “Retired”

As loyal readers of our blog know, “retirement” is a popular tool being used by the workers’ compensation insurance carriers in Pennsylvania to attack the benefits of injured workers in PA. Indeed, the fact that an injured worker can take such an innocent act as applying for a pension, or Social Security Retirement benefits, and jeopardize their entire workers’ comp case, is a large reason why we encourage all injured workers in Pennsylvania to be represented by experienced workers’ comp attorneys, who, like the attorneys at Brilliant & Neiman LLC, are Certified as Specialists in the
Practice of Workers' Compensation Law.

Today, the Commonwealth Court of Pennsylvania decided the case of Turner v. Workers’ Compensation Appeal Board (City of Pittsburgh), which dealt with this “retirement” issue. Here, the injured worker was a police officer who hurt her neck, left shoulder, back, right wrist, and right knee in a work-related car accident in 1994. The injured worker performed a modified duty job for the City of Pittsburgh until 2003, when the City stopped the modified duty program. At that time, Claimant applied for, and received, a disability pension from the City of Pittsburgh.

The workers’ compensation insurance carrier filed a Petition for Suspension, alleging that the application for this pension meant that the injured worker had voluntarily left the labor market, retired in other words, causing a shift of the burden of proof to the injured worker, to show that she was either disabled from all employment, or that she continued to look for work.

Litigation ensued before a Workers’ Compensation Judge (WCJ). During this litigation, the injured worker admitted that she has not looked for work since accepting the pension. Based on the taking of the pension, and the failure to look for work, the WCJ granted the Petition for Suspension. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

On appeal to the Commonwealth Court of Pennsylvania, however, the decision was reversed. The Court cited the recent Supreme Court case of City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson), to demonstrate that the acts of the injured worker in this case were not enough to cause a shifting of the burden. Specifically, the taking of a disability pension alone does not trigger a presumption that an injured worker has retired. There must be more. As the Court explained, citing Robinson, “claimant’s receipt of a disability pension merely represented an inability to ‘perform her time-of-injury position’ and was not indicative of a decision to ‘forgo all employment.’”

Since the burden of proof was not properly shifted to the injured worker, whether she had or had not looked for work was not relevant. Though these types of cases often lead to a sense of injustice to an injured worker (often punishing an injured worker for merely accepting a benefit for which he or she had worked his or her whole life), there is a sense of reason in this decision.

October 3, 2013

Commonwealth Court of PA Defies Logic, Seems Contrary to PA Workers’ Compensation Act

The 1996 amendments to the Pennsylvania Workers Compensation Act (Act 57) were largely a disaster for every worker in PA. Any thought that, as Pennsylvania’s appellate courts like to spout, the PA Workers’ Compensation Act is a piece of “remedial legislation” intended for “humanitarian purposes” and to “benefit the injured worker,” was clearly removed by Act 57.

One of the most ridiculous aspects of Act 57 was the creation of the Impairment Rating Evaluation (IRE). As we have previously noted, once an injured worker has received 104 weeks of temporary total disability benefits, the workers’ compensation insurance carrier can request an IRE. As the Act itself states, in Section 306(a.2)(1), the IRE is used “to determine the degree of impairment due to the compensable injury, if any.” If this permanent impairment rating is less than 50% (a preposterously high standard), the status of the injured worker may be changed to “partial” disability status.

Now, logically, one can only have a permanent impairment rating if the impairment is, well, “permanent.” Our handy dictionary tells us that “permanent” means “lasting or intended to last or remain unchanged indefinitely.” Therefore, again applying logic, if an injured worker has a “permanent” impairment, he or she cannot, at the very same time, be “fully recovered.”

A recent decision from the Commonwealth Court of Pennsylvania, however, defies logic and reason on more than one level. In Harrison v. Workers’ Compensation Appeal Board (Auto Truck Transport Corp.), the injured worker suffered an injury, which was accepted as an ankle sprain. An IRE was performed, which found the permanent impairment rating to be 13%. At the same time, a Petition for Termination was filed. The Workers’ Compensation Judge (WCJ) credited the doctor who performed the IRE and credited the doctor who said the injured worker was fully recovered, and granted the Termination Petition. This decision was affirmed by the Workers’ Compensation Appeal Board (WCAB).

Upon further appeal, the Commonwealth Court of Pennsylvania also affirmed. Firstly, even though the Act specifically states that a permanent impairment rating can only include the work injury, and the IRE doctor issued a document stating that the permanent impairment rating was 13%, the Court dismissed any meaning to that number. In his report, and his deposition, the IRE doctor said the permanent impairment rating was based solely on NON-work-related conditions (the exact opposite of what the Act requires). In its infinite wisdom, the Court still found that the WCJ had sufficient basis to find such an opinion credible. Apparently, compliance with the Pennsylvania Workers’ Compensation Act is merely suggested, as opposed to required, for witnesses offered by the workers’ compensation insurance carrier.

The Court went on to say that whether there is any impairment at all is irrelevant to whether a Termination can be granted. Citing existing case law, the Court found that the fact that “permanent impairment,” related to the work injury, could continue to exist, does not preclude the ability to grant a Termination (which, of course, requires a finding that the work injury has FULLY resolved). While this Court has indeed previously made such a decision, that fact does not help us logically understand how an injured worker can be both “permanently” impaired by a work injury AND fully recovered from the same injury at the same time.

Even though we are certified as specialists in the practice of workers’ compensation law, we have great difficulty reconciling the reasoning of the Commonwealth Court of Pennsylvania with the PA Workers Compensation Act. Let alone, reconciling such a decision with concepts like fairness and justice. Is it too much to ask that law follow common logic, if not some element of human compassion?

September 25, 2013

Reinstatement to Total Workers’ Compensation Denied Past Statute

When an employee in Pennsylvania is injured on the job, and disabled from work as a result of the injury, workers’ compensation benefits should start. These benefits usually stop either when the injured worker is fully recovered or goes back to work (they can be stopped for other reasons, such as incarceration or refusal to undergo reasonable and necessary medical treatment, but that’s for another blog entry).

An injured worker who goes back to work has a period during which he or she may file to reinstate workers’ comp total disability benefits, if the disability recurs. The Pennsylvania Workers’ Compensation Act was a bit unclear on whether this period was three years from the date of the most recent payment of compensation, or 500 weeks from the date of the reduction or stoppage of benefits. Recently, the Supreme Court of Pennsylvania clarified this answer for us all, in the decision of Cozzone v. Workers’ Compensation Appeal Board (East Goshen Township).

In this case, Mr. Cozzone, the injured worker (claimant), suffered a serious injury to his back in 1989. Despite the severity of his injury, claimant went back to work in 1989 and his benefits were stopped. Claimant then continued to work, with no loss of wages, for over 13 years. In 2003, claimant and the workers’ comp insurance carrier entered into a Supplemental Agreement, reinstating total disability benefits (Additional Supplemental Agreements were also entered into between the parties, reinstating benefits again, in 2005 and 2007).

When claimant finally went out of work for the last time, in 2008, the workers’ compensation insurance carrier refused to voluntarily reinstate total disability benefits. Claimant filed a Petition for Reinstatement and litigated the matter before a Workers’ Compensation Judge (WCJ), who granted such Petition. This was reversed by the Workers’ Compensation Appeal Board (WCAB). The Commonwealth Court of Pennsylvania affirmed the decision of the WCAB.

Upon appeal to the Supreme Court of Pennsylvania, the decision was again affirmed. In interpreting Section 413(a) of the PA Workers’ Compensation Act, the Court found that an injured worker has the entire 500 week “permanent partial entitlement period” within which to file a Petition for Reinstatement to total disability. In addition, if payments of compensation were made within the last three years of that 500 weeks, then the injured worker actually has three years after the date of the last payment to file. So, at a maximum, if the injured worker is receiving a partial disability benefit at the time the 500 weeks expire, the injured worker has 500 weeks plus three years to file a timely Reinstatement Petition.
Though the result here was against the injured worker, and the Petition for Reinstatement was ultimately unsuccessful, the findings by the Supreme Court were actually beneficial to injured workers in general. The Court found that an injured worker should have no less than the 500 weeks within which to request reinstatement (whereas the insurance carrier argued that the period should be only three from the date of the last payment). Additionally, the Court found that, when payments of compensation are continuing, the three years is in addition to the 500 week period (rejecting an argument that the 500 week period and the three year period should be mutually exclusive, and should not each be used).

Unfortunately for Mr. Cozzone, his first Supplemental Agreement came in 2003. Since this was well beyond the permitted 500 weeks (no additional three years for Mr. Cozzone, since he was not receiving ongoing payments of workers’ compensation benefits; though the additional three years would not have saved Mr. Cozzone’s case anyway), the Supplemental Agreement had no real legal meaning and was not enforceable (the parties could not voluntarily extend the statute of limitations). So, The Court said, Mr. Cozzone did not have three years from the date of the most recent payment in this case, because the payment could not resurrect the statute of limitations. Mr. Cozzone would have had, at a maximum, 500 weeks plus three years, and the Petition for Reinstatement was beyond that time period.

September 3, 2013

Fatal Claim Benefits Awarded to Dependents of Worker Killed on Job

Sadly, we see many catastrophic injuries which occur on the job. While all such tragic situations are devastating to the family of an injured worker, the most devastating must be the cases where the worker is actually killed by the work injury. Though justice is important in every case, somehow it just seems that much more important when the injured worker is not here to fight for him or herself.

When a worker has a fatal injury, the key question is whether the incident at work was a “substantial contributing factor” in causing the death. Sometimes, the issue gets a bit confusing when some other medical condition, having nothing to do with work, also plays some role in the situation. Recently, in Manitowoc Co., Inc. and Sentry Insurance v. Workers’ Compensation Appeal Board (Cowan), the Commonwealth Court of Pennsylvania was confronted with such a case.

Here, the worker was killed when he fell about six feet from a crane platform. A witness described that the worker was on the platform and, while crouching, his eyes rolled back, and he fell off the platform striking his head on the floor. The worker initially had a pulse, but then stopped breathing. He was then resuscitated and transported to the hospital, where he passed away. An autopsy concluded that the cause of death was “cardiac dysrhythmia due to mitral valve prolapse.”

A Fatal Claim Petition was filed and litigated before a Workers’ Compensation Judge (WCJ). The medical expert offered by the Claimant testified that, based on the statements of the witnesses (that the injured worker was still alive when he fell) and the medical records, the injured worker did not experience cardiac arrest at the time of the fall. Also noted was that the autopsy report did not show a heart attack or coronary artery disease, and that no cardiac arrhythmia was found in the hospital prior to the death.
The medical expert concluded that the injured worker’s death “was the direct result of falling onto his head, which caused a closed-head injury with a massive concussion and a diffuse axonal injury, leading to anoxic brain injury and cerebral edema.”

The workers’ compensation insurance carrier presented the testimony of two medical experts who, predictably, testified that the death was cardiac in nature, and not the result of the fall from the platform. After considering all of the evidence, the WCJ found the opinion of the medical expert offered by the Claimant most credible, and granted the Fatal Claim Petition. Specifically, the WCJ found that the death resulted from the fall from the platform (many cases have already established that the reason why an injured worker falls is generally not relevant, if the resulting injury is not the normal part of a non-work-related condition). This decision was affirmed by the Workers’ Compensation Appeal Board (WCAB).

The primary argument by the workers’ compensation insurance carrier on appeal to the Commonwealth Court of Pennsylvania was that the opinion of Claimant’s medical expert was equivocal because the doctor suggested more than one theory regarding the exact cause of death. This was detailed by the Court:

At the hearing, Dr. Stoner set forth four possible explanations regarding the connection between Father’s fall and his death: (1) the fall caused mid-brain hemorrhaging and death; (2) the fall caused a massive head injury, resulting in cardiac and respiratory arrest, anoxic brain injury, and death; (3) the fall caused a blood clot in the back of Father’s throat, impairing his ability to breath and causing anoxic brain injury and death; or (4) the fall caused closed-head trauma, mid-brain hemorrhaging, secondary anoxic brain injury, and death.”

In affirming the decision of the WCJ, the Court noted that, regardless of which specific theory was reviewed, each of the theories involved the injured worker being killed as a result of the fall from the platform (and not from a cardiac event). Indeed, Claimant’s medical expert specifically stated, “’with a high degree of medical certainty,’ that absent the head trauma, (the injured worker) would still be alive.” Simply offering alternate theories did not render the opinion equivocal, since the opinion consistent among the theories was that the blow to the head caused the death. Also, the fact that a cardiac event may have caused him to fall is irrelevant, since the opinion accepted by the WCJ (the ultimate finder of fact) is that the cardiac event did not cause the death.

August 22, 2013

Court Decides Injured Worker Abandoned Job at Time of Injury

Previously, we have discussed when the Commonwealth Court of Pennsylvania has addressed whether an employee was in the “scope and course” of his or her job at the time of the work injury. This issue has once again risen on appeal.

In the case of Trigon Holdings, Inc. v. Workers’ Compensation Appeal Board (Griffith), the injured worker was a supervisor in a machine shop. After he made sure his guys were set up, and the machines were all running properly, he told them he would be in another room for a few minutes. Five minutes later, his left thumb was caught in a machine while he was polishing a part for his child’s go-cart, severely injuring the thumb. As a result of the thumb injury, the injured worker was disabled from his job.

A Claim Petition was filed and litigated before a Workers’ Compensation Judge (WCJ). The injured worker, and witnesses he offered, testified that employees at the machine shop were permitted to work on personal things at the shop, and this was something done on a frequent basis. The general manager of the company testified that this action was never permitted and was totally unacceptable. In granting the Claim Petition, the WCJ found the testimony of the injured worker, and his witnesses, more credible than of the general manager. Specifically, the WCJ found that “a small temporary departure from work does not break the course of employment[,] and that an incident necessary to constitute a break in the course of employment must be of a pronounced character.’” On appeal, this decision was affirmed by the Workers’ Compensation Appeal Board (WCAB).

As we have previously addressed, findings of fact made by a WCJ cannot be disturbed on appeal (unless they are not based upon sufficient evidence), but whether an injury took place in the scope and course of employment is a question of law, which is fully reviewable by appellate courts.

Accepting the credibility determinations made by the WCJ, the Commonwealth Court of Pennsylvania still reversed the decision. The Court found that going into the other room to polish a part for his child’s go-cart was more than a simple “momentary departure from the work routine,” which would keep an employee within the scope and course of his job. Examples of departures like this for “personal comfort” would be getting a drink or using the bathroom. Instead, the Court called this departure “strongly marked and not trivial.” Indeed, the Court found that by his action, the injured worker “actively disengaged himself from his work responsibilities.” Since, as a result, “Claimant had abandoned his work responsibilities and was deliberately engaged in an activity wholly foreign thereto,” the Claim Petition should have been denied.

As we often see in these types of cases, the particular facts of the case, and how they are presented, are critical. Not only for how they are presented to the WCJ, but how they are placed into the evidentiary record (for the appeals process). Complexities like these in the Pennsylvania workers’ compensation system demonstrate why there is now a process for attorneys to be certified as specialists in the practice of workers’ compensation law by the Pennsylvania Bar Association’s Section on Workers’ Compensation Law as authorized by the Pennsylvania Supreme Court. Each of the attorneys at Brilliant & Neiman LLC is certified under this process, providing assurance to our clients that no matter which of our attorneys handle a case, the representation being provided is always at this high level.

August 16, 2013

Employer Gets Subrogation on Contract Suit

While an injured worker in Pennsylvania generally cannot sue his or her employer for causing a work injury (since Pennsylvania workers’ compensation is an “exclusive remedy”), the injured worker is able to sue a third party for causing a work injury. We see this situation with car accidents, slip and fall cases and products liability cases.

When an injured worker in PA does sue another party for causing his or her work injury (called a “third party”), and is awarded money, the workers’ compensation insurance carrier is entitled to be repaid money that it paid in medical expenses and wage loss benefits (this is called “subrogation”). Ultimately, unless the attorney negotiates something better (which is what happens normally), the injured worker ends up with no money from this third party case.

Not every law suit involving a work injury creates a right to subrogation, however. For example, a PA workers’ compensation insurance carrier is not entitled to subrogation in a medical malpractice award, if the work injury was not aggravated by the malpractice. The key is whether the award in the third party case is a direct result of what caused the disability.

Recently, the Commonwealth Court of Pennsylvania examined whether the award of money for a third party case must be from the exact party at fault, and must be directly awarded for personal injury. In Kennedy v. Workers’ Compensation Appeal Board (WCAB), the employee crushed his right hand in a conveyor belt. A products liability action was filed against the manufacturer of the conveyor belt. Due to an exclusions clause in the liability insurance contract held by the manufacturer, neither the manufacturer nor its liability insurance carrier defended the products liability suit. As a result, the injured worker was awarded a sum of money.

To collect the money, the injured worker had to file a breach of contract suit against the liability insurance carrier of the manufacturer. This was successful, so the injured worker was ultimately awarded the sum of money which was found in the initial personal injury suit.

When the workers’ compensation insurance carrier then sought subrogation, to get money back from that judgment, the injured worker refused, saying the money was for a breach of contract suit (not a personal injury suit) and was being paid by an insurance carrier, not by the party responsible for the injury. Litigation ensued before a Workers’ Compensation Judge (WCJ), who found that the money awarded to the injured worker, despite the tortured process, was for the injury that caused him to be disabled. Therefore, the WCJ granted the workers’ comp insurance carrier’s request for subrogation. This was affirmed by the WCAB.

Upon further appeal, the Commonwealth Court of PA also affirmed. The Court concluded that subrogation was appropriate because “ . . . the instant case involves a monetary recovery coming from the insurance carrier for the third party tortfeasor that caused Claimant’s original compensable injury.” Interestingly, the Court did not stop there. Instead, the Court reviewed the purposes behind the principle of subrogation, to make sure this matter fit:

“By allowing reimbursement of Employer’s subrogation lien all purposes of subrogation are met: (1) Claimant, having been made whole for his injury, will not receive a double benefit; (2) Employer will not be compelled to make compensation payments for the negligence of a third party; and (3) liability is placed on the proper party.”

Though we at Brilliant & Neiman LLC only handle workers’ compensation cases, and partner with other similarly superb attorneys to handle third party aspects faced by our clients, we do come across these situations in our practice. As the law reads, and the “purposes” of subrogation are stated, the decision made by the Court makes sense. However, we cannot lose sight of the fact that the law actually is designed so the injured worker gets ZERO from a personal injury lawsuit in this context. Since personal injury allows for a recovery of pain and suffering, but workers’ compensation does not, how is that fair?

August 9, 2013

Worker Hurt Walking to Train Not in Scope and Course of Work

Say you are coming home from work and you are injured; are you entitled to workers’ compensation benefits in Pennsylvania? As we have mentioned previously, generally, an employee is not eligible for injuries suffered in the commute to or from work (known as the “Going and Coming Rule”). Recently, the Commonwealth Court of Pennsylvania addressed this issue again in Mansfield Brothers Painting and Selective Insurance Company of America v. Workers’ Compensation Appeal Board (WCAB).

A union painter was assigned to work full-time for his employer at the University of Pennsylvania. While on his way home from the job one day, the painter fell near the train station, and hurt his left shoulder, neck and back. A Claim Petition was filed and litigated before a Workers’ Compensation Judge (WCJ).

The facts were not in dispute. The painter was hired to work at a specific building on the Penn campus, which only had a single entrance. He elected to commute to work by train. On the walk to the train station, about 150 feet from the exit of the building in which he worked, the painter fell on an uneven slate walkway and suffered these injuries. The fall took place while the painter was still on Penn’s campus.

Based on these facts, without explanation, the WCJ granted the Claim Petition and awarded the painter temporary total disability benefits. On appeal, the WCAB affirmed the granting of the benefits. Specifically, the WCAB found that the painter was in the scope and course of his employment at the time of the injury because “Claimant was injured while on premises where [Employer’s] business affairs were being carried on (i.e.) the [University] campus and that a condition of the premises (i.e.) the uneven slate pathway, contributed to Claimant’s work injury.”

Unfortunately for the injured worker, this decision was reversed on appeal to the Commonwealth Court of Pennsylvania. First, the Court noted that the employer was not the University of Pennsylvania, but the painting contractor. Though one can be on “employer’s property” for the purposes of workers’ compensation when on property not actually owned by the employer “when the employer requires employees to use that property,” that was not the case here. The Court found that employer (the painting contractor) only worked in that one building, not the entire campus. Therefore, the injured worker was hurt on the University’s premises, but not premises owned or controlled by his employer. The employer had no rule or interest in the method the injured worker used to come to work. The fact the building had only one exit became irrelevant once the injured worker travelled such a distance from that exit.

The Court also found the injured worker was not a “travelling employee,” who would have a greater latitude of coverage in the commute. The painter was assigned to a specific project and was expected to remain at that project until such project was completed. The role of a visiting nurse, assigned to many different locations at the same time, was differentiated by the Court.

August 2, 2013

Benefits Suspended to Injured PA Worker Without Showing Any Job Available

Once an injured worker in Pennsylvania has an accepted work injury (whether by decision of a Workers’ Compensation Judge (WCJ), or the issuance of a Notice of Compensation Payable or Agreement for Compensation), such benefits can only be suspended for a limited number of reasons. A return to gainful employment, with no loss of wages, is obviously the most desirable reason. Other reasons can include incarceration after a conviction and proof of available employment at the pre-injury wages.

An additional reason, though rarely seen, is an intervening injury, not related to work, which renders the injured worker totally disabled. The case that first established this principle was Schneider, Inc. v. Workers’ Compensation Appeal Board (WCAB), decided by the Pennsylvania Supreme Court in 2000. This case involved a unique set of facts, and it was hoped the principle would be limited to facts so extreme.

The injured worker in the Schneider case was receiving benefits for a work injury involving his head and neck. He was then involved in a serious non-work-related incident which left him with severe brain damage and paralysis. A Petition for Suspension was granted, stopping the workers’ compensation benefits, without any requirement that the workers’ compensation insurance carrier show any jobs were available within the restrictions of the work injury. The WCJ found the opinion of the insurance carrier’s medical expert credible, that the injured worker was capable of some type of work (from the standpoint of the work-related injuries), though totally (and permanently) disabled by the non-work-related incident. The Court reasoned that it would be an “exercise in futility” to require the insurance company to show job availability, since the injured worker was totally disabled by a non-work-related cause.

Recently, the Commonwealth Court of Pennsylvania faced this issue in Southeastern Pennsylvania Transportation Authority (SEPTA) v. WCAB. Here, the non-work-related incident caused much less significant injury than that in Schneider, but, importantly, the injured worker had been performing light duty work until the non-work-related incident took place. As in Schneider, the Suspension was granted, without any requirement of showing job availability. Though we certainly hope Schneider will be interpreted narrowly, and we cringe whenever it is cited by a Court, we do not necessarily see this as a dangerous expansion of Schneider. Here, the facts establish the reason the injured worker stopped doing his job was the non-work-related injury. In such a case, in all fairness, the conclusion made by the Commonwealth Court was not unreasonable.

July 18, 2013

Collateral Estoppel Used to Actually Help an Injured Worker in PA

The term “collateral estoppel” essentially means that once an issue is fully litigated, it cannot be litigated again. The primary example of this concept, as it applies to PA workers’ compensation, is the Weney case. Whenever we have seen the use of “collateral estoppel” in Pennsylvania workers’ comp, however, we have seen it used to the detriment of the injured worker. For once, however, the Commonwealth Court of Pennsylvania used this concept to benefit the injured worker.

In Channellock, Inc. v. Workers' Compensation Appeal Board (WCAB), the Claimant suffered an annular tear and a herniated disk at the L5-S1 level at work in 2001. The injured worker was offered a “no work” job at the employer, which he accepted (a “no work” job is literally a job where the injured worker reports to the employer to do nothing; this is a frequent tool used by devious employers, as was attempted here, to subvert the workers’ comp process). Due to his pain medications, and the inactivity inherent in a “no work” job, Claimant fell asleep and was promptly terminated.

Litigation ensued before a Workers’ Compensation Judge (WCJ). A decision was rendered by the WCJ, denying a Petition for Termination (since the injured worker was not found to be fully recovered) and granting a Petition for Reinstatement (finding that “the no duty position was not within Claimant’s capabilities because Claimant had difficulty staying awake due to his prescribed medication”).

Subsequently, a “no work” job was offered again, albeit in a different location. Also, the discipline system was changed, such that the injured worker would only be terminated if he fell asleep four times. When the injured worker did not continue to work in this position, the workers’ comp insurance carrier filed a Petition for Suspension (also pending was a Petition for Termination, a Petition for Reinstatement and a Petition for Penalties, though these are not relevant to our discussion).

Citing Weney, in the opposite way it was initially used, the Commonwealth Court of Pennsylvania found the insurance carrier was precluded from litigating whether the “no work” job was available to the injured worker, since that issue had already been decided. In other words, the insurance carrier was collaterally estopped from making this argument. The Court was not persuaded that the job was in a different location (since it remained a “no work job”), that the discipline system changed (the injured worker still was rendered sleepy by his medication and still could be terminated for sleeping on the job), or that this was a new job offer (again, same basic “job”). The Court found that the essential issue was the same in both cases:

Whether Claimant who continued to have a problem staying awake due to the medications to treat the work-related injury and whether falling asleep could result in disciplinary action taken against Claimant up to and including termination.”

We must admit a certain amount of satisfaction in the Weney case being used as a shield for an injured worker, rather than the sword in the back, as we often see. There are times, it would seem, when justice does prevail.

July 11, 2013

No Death Benefits Despite PA Injured Worker Dying From Work Injury

As a general rule, an injured worker is entitled to benefits under the Pennsylvania Workers’ Compensation Act when he or she is disabled as the result of a work injury. A spouse or dependent of an injured worker is usually entitled to death benefits (which vary, depending on the relationships of the dependents who exist) when the injured worker dies as a result of the work injury. There are, of course, exceptions to this rule. One of those exceptions is the time involved between the work injury and the injured worker’s death. In this situation, we can see a terribly unfair result.

Recently, there was an example of this situation, and its inequitable results. In Whitesell v. Workers’ Compensation Appeal Board (WCAB), the injured worker suffered a back injury at work in 2003. Initially, the injury was accepted by the workers’ compensation insurance carrier by Notice of Compensation Payable (NCP), which described the injury as a lumbar strain and sprain. In 2006, there was litigation in which the description of injury was amended to include “lumbar disc disruption L4-L5, resulting in total disc arthroplasty at L4-L5 level.” Tragically, the injured worker died in 2011, as a result of “mixed drug toxicity,” from the medications she was taking for the work injury.

Since the death was related to the work injury, one would presume that death, or fatal claim, benefits would be available to the surviving spouse/dependents. One would be wrong. The Pennsylvania Workers’ Compensation Act, states, in Section 301(c)(1), “ . . . wherever death is mentioned as a cause for compensation under this act, it shall mean only death resulting from such injury and its resultant effects, and occurring within three hundred weeks after the injury.” Since the death here did not take place within 300 weeks of the original injury, death benefits were denied by the Workers’ Compensation Judge (WCJ). This was affirmed by the WCAB.

Further appeal to the Commonwealth Court of Pennsylvania was not successful. The Court did not agree with the argument that the 300 week limit should not begin until the amendment of the description of injury, since that is what led to the death (and, having taken place in 2006, was narrowly within the time limit here). The Court held that, unless the injury falls under the “Occupational Disease” category (which was not the situation here), the 300 week limit begins to run when the original injury takes place. Whether the description of injury is amended at some point is simply irrelevant. Since more than 300 weeks had passed between the 2003 injury and the 2011 death, the Court ruled that the Fatal Claim Petition must be denied.

Reasonable, logical and compassionate minds can only wonder at the reason for this limitation contained within Section 301(c)(1). This is yet another situation when inarguably an injured worker (and her family) is harmed directly by a work injury and yet has no redress. Often, the appellate Courts in Pennsylvania speak of the “humanitarian purposes” of the Pennsylvania Workers’ Compensation Act; this is yet another demonstration of how hollow those words can ring.

July 3, 2013

Denied PTSD Case Going to Supreme Court of Pennsylvania?

We were appalled when the Commonwealth Court of Pennsylvania recently found armed robbery to be a “normal” part of the job as a clerk working for the Pennsylvania Liquor Control Board. Accordingly, we are seeking to take our battle to the top.

When a party loses a workers’ compensation case in Pennsylvania, the decision of the Workers’ Compensation Judge (WCJ) can be appealed to the Workers’ Compensation Appeal Board (WCAB). A party then has the right to file an appeal with the Commonwealth Court of Pennsylvania. That is the end for a party having the automatic right to appeal a workers’ compensation case in PA. Beyond that is at the discretion of the Pennsylvania Supreme Court, the highest Court in the State.

Once a party loses at the level of the Commonwealth Court of Pennsylvania, and wants to take the case to the PA Supreme Court, the party must request “allocatur” by filing a Petition for Allowance of Appeal. The High Court then has the discretion whether to accept the appeal (grant allocatur) or not. Very few appeals are accepted by the Supreme Court.

As we have noted, the Commonwealth Court of Pennsylvania has affirmed the decision of the WCAB, which reversed the decision of the WCJ, in our liquor store clerk case. We have now filed a Petition for Allowance of Appeal with the Supreme Court of PA. While we do not know whether our appeal will accepted by the Court, we do know what justice, and fairness, requires.

June 18, 2013

Guns, Violence in PA Liquor Stores Perfectly Normal, Says Court

We have expressed our displeasure for how the Pennsylvania Workers’ Compensation Act treats mental/emotional injuries. As long as the cause of the injury is purely mental/emotional, any resulting disability is only compensable if the cause represents an “abnormal working condition.” The standard for this test varies according to the job in question; a police office, firefighter or other first responder would have a greater burden of proof than an accountant, chef or automobile mechanic, simply because their job tends to expose them to more shocking events.

This issue is dear in our hearts, since we have a case we have discussed on our blog previously, highlighting this ridiculous standard. For those who do not recall, we represent a liquor store clerk who was the victim of an armed robbery. Understandably, the clerk was then disabled by post-traumatic stress disorder. The Pennsylvania Liquor Control Board had the gall to deny the claim, saying that armed robbery at one of their stores was not “abnormal.” (It offends us as taxpayers, and citizens, that the agency openly embraces such incompetence by knowingly exposing their employees to danger, rather than make any effort at a solution).

The case was litigated, with both medical experts agreeing that the clerk had post-traumatic stress disorder, and that he was unable to return to that employment. In defense, the Pennsylvania Liquor Control Board (LCB) showed their training process, which included how to handle an armed robbery, the location and function of panic buttons, and the “open safe” key. All of the training materials, however, stated that the occurrence of armed robbery in a liquor store was “rare,” and that this was an “unlikely event.” Neither the clerk, nor any of the four witnesses presented by the LCB, was ever the victim of an armed robbery. Indeed, the manager of the store at which the clerk worked was not even aware of the procedure following a robbery. The store had panic buttons installed, but did not have any guards.

Based on the evidence presented, the Workers’ Compensation Judge (WCJ) granted the Claim Petition, finding armed robbery to be an abnormal working condition. While the training materials covered the possibility, all of the evidence showed the actual occurrence of armed robbery was rare, making it, by definition, “abnormal.”
The LCB appealed this decision to the Workers’ Compensation Appeal Board (WCAB), who reversed the decision. The WCAB concluded that because the training materials included the possibility of armed robbery, it was foreseeable. And, went the logic of the WCAB, “foreseeable” = “normal.” We then appealed the case to the Commonwealth Court of Pennsylvania, who recently, to our dismay, affirmed the decision of the WCAB.

That the WCJ is the ultimate Finder of Fact seemingly was disregarded by both the Court and the WCAB. The WCJ concluded, based on her review of the evidence, that armed robberies were infrequent and rare, making them “abnormal.” It is absurd that simply because an employer includes an unlikely event in its training program such an event cannot then be “abnormal.” It would appear, since schools and many offices have training and drills on many possible, but unlikely events, such as shootings, bombings and natural disasters, any emotional injuries should any of these events actually happen would not be compensable since they were “foreseeable.”

This is such a ridiculous standard that it is time to beg the Pennsylvania legislature to fix this matter, since the Courts have now taken to fact-finding to completely emasculate the notion of mental injuries in Pennsylvania. Is this what we are to expect from legislation which was initially designed to protect the injured worker?

April 24, 2013

Failed Drug Test Damaging to PA Injured Worker

The general rule in Pennsylvania workers’ compensation is that if a work injury makes you unable to work, you should be entitled to workers’ compensation benefits. One of the exceptions to this rule is when the loss of wages is due to some reason unrelated to the work injury.

Recently, the Commonwealth Court of Pennsylvania addressed this issue in Brewer v. Workers’ Compensation Appeal Board (E2 Payroll & Staffing Solutions). The Claimant injured his low back when he was pinned by a forklift. As is their known policy, the employer had the hospital take a drug test of Claimant after the injury. Claimant failed the drug test, and admitted he used cocaine and marijuana a few days before the work injury. Since the employer has a zero-tolerance policy on drug use, Claimant was fired immediately.

Claimant filed a Claim Petition, seeking payment of his lost wages. In the litigation, the doctor secured by the workers’ compensation insurance carrier testified that the incident at work had caused a herniated disc in the lumbar spine, and that this damaged disc was irritating a nerve (a condition called “radiculopathy”), but that Claimant was capable of working at a light duty position. The employer had a representative testify that light duty work would have been available to Claimant, if he had not been terminated for failing the drug test. The Workers’ Compensation Judge (WCJ) granted the Claim Petition, but suspended wage loss payments, finding the loss in earnings to be unrelated to the work injury. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

Upon further appeal, the Commonwealth Court of Pennsylvania also affirmed. Initially, Claimant argued that benefits cannot be suspended here because the workers’ comp insurance carrier failed to issue a Notice of Ability to Return to Work. While the Court agreed that this document is generally a threshold requirement before the workers’ comp insurance carrier can try to suspend benefits based on a job offer or a Labor Market Survey, the Court found this issue different:

Here, the WCJ found that although Claimant had suffered a work-related injury, his loss of earnings was caused by his misconduct, not his injury. A notice of ability to return to work was not required because Section 306(b)(3) of the Act is limited to modifications based on medical evidence received by the employer. The Board did not err in suspending benefits as of the day of Claimant’s work injury.”

The injured worker then argued that being fired from work was not proof that he did not have a loss in earnings. The Court rejected this contention similarly, noting that the loss in earnings here was the result of the misconduct of the injured worker, having nothing to do with the work injury. An argument that there was not sufficient evidence that Claimant actually failed the drug test was also rejected, since the WCJ credited evidence, including Claimant’s own admission of drug use, that corroborated the drug test. A final argument was not addressed by the Court, since the injured worker failed to raise this argument in the appeal to the WCAB (an argument is waived if not raised in the initial appeal).

April 16, 2013

Retirement in Workers’ Comp Again Addressed in PA

Fresh from the PA Supreme Court decision in City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson), comes a decision from the Commonwealth Court, again addressing the interplay between the concept of “retirement” and the continued entitlement to workers’ compensation benefits in Pennsylvania.

In the matter of Fitchett v. Workers' Compensation Appeal Board (School District of Philadelphia), the primary issue was actually procedural, rather than whether the “retirement” was proven, or which side had the burden of proof. Though other Petitions were pending, the relevant one was a Petition for Termination, alleging that Claimant had fully recovered from her work injury. Notably, in an “interlocutory” order (a temporary order, not usually subject to appeal), the Workers’ Compensation Judge (WCJ) granted Defendant an offset for both a pension and Social Security Retirement (SSR) benefits being received by the Claimant.

While testifying in defense to the Petition for Termination, Claimant was asked whether she considered herself retired. Claimant had responded, “Well, I’m collecting retirement.” In subsequent testimony, she clarified that if not for her work injuries, she had planned to continue working. When asked directly whether she was retired, however, Claimant responded, simply, “yes.” Again, Claimant later clarified that she meant she had to leave her employer due to her injuries. Claimant testified she had not looked for any work, and forms from her treating doctors, wherein Claimant described her occupation as “retired,” were offered into evidence.

The WCJ reviewed deposition testimony of two doctors who had performed Independent Medical Examinations (more accurately known as Defense Medical Exams), and also a deposition of Claimant’s treating neurologist. The WCJ concluded that the work injury was limited to a sprain of the left shoulder, left thumb, neck and lumbar spine, and that all but the left shoulder had healed.

Since Claimant had not fully recovered from the entire work injury, the standard in a Petition for Termination, the WCJ properly denied the Termination. However, though the Defendant never filed a Petition for Suspension, or even placed on record an allegation of Suspension, the WCJ granted a Suspension, based on Claimant’s “retirement” and resulting voluntary withdrawal from the labor market.

In the Findings of Fact, WCJ said:

"The evidence at bar establishes [Claimant] applied for and receives her [Employer] pension and age-related Social Security benefits (N.T., November 2, 2004, p. 59-61), acknowledged to [Neurologist] that she had retired, indicated on an intake sheet of [Second IME Physician] that she retired (N.T. exhibit E-3, p. 11), acknowledged on December 30, 2008 that she “retired” (N.T. December 30, 2008, p. 29) and has not applied for any position in the local economy nor looked for any type of work."

The WCJ did not find the Claimant credible with regard to her intention to work, and did not believe the work injury, consisting only of a sprain, was sufficient to make Claimant disabled from all gainful employment. This decision was affirmed by the Workers’ Compensation Appeal Board.

The Commonwealth Court of Pennsylvania affirmed the WCJ on this issue (the matter was actually reversed in part, but not on any issue relevant to this discussion). Claimant should have been on notice through the proceedings that a suspension of benefits was possible. The “retirement” of Claimant was discussed, and a credit was being taken for pension and SSR benefits. The Court said the parties “fully litigated the issue of whether Claimant voluntary retired from the workforce.”

Under Section 204(a) of the Pennsylvania Workers’ Compensation Act, an insurance carrier must file a Notice of Offset before it can take an offset against certain benefits, such as pension and SSR. In this case, Claimant then argued that Defendant could not take an offset, since no Notice of Offset was filed. The Court rejected this argument, saying the requirements of Section 204(a) only apply when an insurance carrier wishes to take the offset unilaterally; here, the WCJ had issued the interlocutory order, granting the offset. It was also noted that the amounts of each benefit being received were testified to by the Claimant.

One Judge dissented, not agreeing the issue of suspension, of retirement, was ever truly at issue, sufficient to lead to a suspension of benefits. In relevant part, the dissent observed:

The matter regarding whether Claimant had voluntarily retired from the workforce was incidentally raised, as explained in the majority opinion, on cross-examination and was never the focus of the proceeding. The issue of whether Claimant had voluntarily retired was never raised by Employer either by petition or motion. Based on that scant testimony, the WCJ suspended benefits finding that Claimant had voluntarily retired from the workforce. I respectfully dissent because, based on the “totality of the circumstances,” that issue was not sufficiently raised for the WCJ to be able to consider it.”

March 27, 2013

Suspension for “Retirement” Not So Easy for PA Workers’ Comp Insurance Carriers; PA Supreme Court Affirms Robinson

As readers of our blog surely know by now, the relationship between the “retirement” of an injured worker and continued entitlement to Pennsylvania workers’ compensation disability benefits is a frequent topic in appellate litigation. The decisions in both the Commonwealth Court of Pennsylvania and the Supreme Court of Pennsylvania are regular enough that we, as attorneys who limit our practice to representing injured workers in PA, need to stay informed to best protect our clients.

Back in 2010, we discussed the decision of the Commonwealth Court of PA in the case of City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson). In that case, the Commonwealth Court established that the taking of a disability pension, as opposed to a retirement pension, was not an indication of retirement. Therefore, the Court held that the workers’ compensation insurance carrier still had to prove that work was available to the injured worker in order to obtain a suspension of her workers’ compensation disability benefits. In 2011, we reported that the workers’ comp insurance carrier had filed a petition for review with the Supreme Court (Requested “allocatur”) and the Court granted the allowance of appeal.

Recently, the Supreme Court of Pennsylvania issued a decision, affirming the decision rendered by the Commonwealth Court. However, whereas the Commonwealth Court drew a distinction between a “disability” pension (as in this case) and a “retirement” pension, the Supreme Court held that the taking of a pension, regardless of what type of pension, does not (by itself) trigger any type of presumption (or in other words, a workers’ comp insurance carrier must prove more than that the injured worker took a pension to show that the injured worker “retired,” to obtain a suspension of the workers’ compensation disability benefits).

As the Supreme Court observed, the argument advanced by the workers’ comp insurance carrier did not make sense to lead to a presumption of retirement:

Furthermore, we do not believe it self-evident, or even logical to presume, from
the simple fact that a claimant accepts a pension, a conclusion that the claimant has
completely and voluntarily withdrawn from the workforce, or is prohibited from working
in any capacity
.”

The Court went on to say that the taking of a pension is still relevant. It may be used by a Workers’ Compensation Judge (WCJ) as a “permissive inference” that an injured worker is retired, but it is only a single factor in the analysis. As the Court said, “the receipt of
a pension is not sufficient evidence, in and of itself, to discharge the employer’s burden
of proof.” The proper course for a WCJ is to examine all of the evidence, not just that single fact, and consider the taking of the pension in the context of the totality of the circumstances. According to the Court, relevant factors may include, “the claimant’s receipt of a pension, the claimant’s own statements relating to voluntary withdrawal from the workforce, and the claimant’s efforts or non-efforts to seek employment.”

Here, the WCJ found that the injured worker was seeking employment, and that she would have been working had the Employer not terminated her modified-duty job. Thus, the totality of the circumstances indicated that the injured worker had not “retired,” so the workers’ comp insurance carrier was not entitled to a suspension of benefits.

February 8, 2013

Change of Injury Description Barred by Court

Several years ago, we discussed the decision in Weney v. Workers’ Compensation Appeal Board (Mac Sprinkler Systems, Inc.), wherein the Commonwealth Court of Pennsylvania precluded an injured worker from amending a description of injury, because the injured worker had previously filed a Petition to Review and did not address that body part or diagnosis.

We found that decision to be overly harsh, unfair to the injured worker, and counter-productive for the resolution of cases (in essence, the Court punished the injured worker for agreeing to resolve the first Petition to Review by Stipulation, rather than go through the litigation process). Now, for injured workers, things have gone from bad to worse.

Recently, the Commonwealth Court of Pennsylvania, in DePue v. Workers’ Compensation Appeal Board (N. Paone Construction, Inc.), had another opportunity to address this issue, and again elected to punish the injured worker for resolving some aspect of his case. We are again mystified as to why the appellate system insists on sending a message that resolution is full of dangers and is, perhaps, best avoided.

In DePue, the injured worker elected to settle the wage loss (“indemnity”) part of his case. This, as would be done typically, was accomplished by “Compromise & Release Agreement.” Since they were only resolving the wage loss part of the case, and the medical aspect was to remain open, the description of injury was not relevant to the proceedings.

When one settles a case by Compromise & Release Agreement, there is a specific form which must be used. The form has 19 numbered paragraphs. One of these paragraphs, Number Four, asks that the “nature of the injury” be stated. The Compromise & Release Agreement executed by Mr. DePue contained in this paragraph,“any and all injuries suffered at North Paone Construction Company, including but not limited to the accepted injuries of a severe closed head injury with seizure disorder and short term memory loss."

About two years later, Mr. DePue filed a Petition for Penalties, because the workers’ compensation insurance carrier refused to pay for medical treatment to the left shoulder (the insurance company had been paying for such treatment for years), and a Petition to Review, to add the left shoulder as an accepted injury. In opposition, the workers’ comp insurance carrier submitted a copy of the Compromise & Release Agreement, and written memos between the parties which discussed whether the left shoulder should be added to the Agreement. The Workers’ Compensation Judge (WCJ) denied both Petitions, since the left shoulder was not mentioned on the Compromise & Release Agreement (and was not otherwise accepted in any other document), and since Mr. DePue was barred from now adding any further diagnoses to the work injury, under Weney. This was affirmed by Workers’ Compensation Appeal Board.

Upon further appeal, the Commonwealth Court of Pennsylvania also affirmed. The injured worker argued that this case was not like Weney – here there was no prior litigation involving a request to amend the description of his work injuries. In other words, the description of injury was never relevant to a decision in this matter. The Court found the written memos between the parties, discussing whether the left shoulder was to be included or not, to be critical. As the Court concluded:

“After negotiations with Employer, Claimant agreed to omit the left shoulder injury from the description of his injuries accepted by Employer in the C & R agreement.”

Thus, the Court found that, like in Weney, the nature of the injury was addressed in this litigation, and the injured worker had ample opportunity to litigate the issue, if he so chose (the Court neglects to note that the injured worker actually could not have litigated this issue in the context of the only pending process, a Petition for Approval of Compromise & Release Agreement). Under Weney, then, Mr. DePue is now barred from further expanding his injury.

This case does provide important information for those of us who represent injured workers every day. The Court took pains to note that Mr. DePue failed to “ . . . expressly reserve his right to add a new injury to the description of his work injuries.” Additionally, the Court also attached importance to the use of "any and all injuries" in the Compromise & Release Agreement. Situations like this one highlight the value of being represented by a firm, like Brilliant & Neiman LLC, which limits its practice to just handling PA workers’ compensation cases.

February 1, 2013

Undocumented Worker Cut Off from PA Workers’ Comp Without Change in Condition

As we have previously noted, undocumented workers in Pennsylvania are eligible for workers’ compensation benefits, but such benefits can be stopped when the injured worker is no longer totally disabled.

What a workers’ comp insurance carrier must prove to stop benefits in this situation was examined recently in the matter of Ortiz v. Workers’ Compensation Appeal Board (Raul Rodriguez). Here, the injured worker fell from a ladder and fractured his leg and ankle. Since the employer had no workers’ comp insurance, the injured worker filed a Claim Petition against the Uninsured Employers’ Guaranty Fund (UEGF).

During the litigation before the Workers’ Compensation Judge (WCJ), the injured worker went back to work, albeit on a part-time basis. The WCJ granted the Claim Petition and awarded ongoing workers’ comp benefits, based on the injured worker’s earnings. UEGF did not appeal this decision.

Subsequently, the UEGF filed a Petition for Suspension, alleging that the injured worker was not legally able to work in this Country, and was capable of some employment, making him ineligible for continued PA workers’ compensation benefits. In his Answer, the injured worker admitted that he was not legally able to work in this Country, but argued that a change in condition must be shown before benefits could be modified or suspended.

The WCJ agreed with the injured worker and denied the Petition for Suspension. Specifically, the WCJ noted that without having shown a change in the medical condition of the injured worker, the legal status alone was not enough and the Petition must be denied.

Upon appeal, the Workers’ Compensation Appeal Board (WCAB) reversed, finding that the return to part-time work was the proof of a change in medical condition. Thus, the mere proof then that the injured worker was not legally able to work in the United States was enough to obtain the Suspension. This was affirmed by the Commonwealth Court of Pennsylvania.

Our problem with this decision is not so much the law, as the tortured way the Board, and the Court, achieved their desired result. The need to compromise, allowing benefits to undocumented workers only as long as they remain totally disabled is far from perfect, and a bit Draconian for our liking, but at least understandable. The result in THIS case is not.

The injured worker went back to this part-time work in the prior litigation. A WCJ specifically found that ongoing benefits should be paid with this return to work. The UEGF did not appeal, making that decision final. That issue had already been decided and could not be relitigated.

After all, when it came to the injured worker trying to come back and change something (in the Weney case in 2008), the Court held sternly that the injured worker was barred from doing so. Yet, here, the insurance carrier (or, more accurately, the UEGF) was free to have another bite at the apple. This is simply an untenable result to interpret the Pennsylvania Workers’ Compensation Act in this fashion. The PA Courts frequently talk about how the Act is a “humanitarian” Act, enacted for “remedial purposes” and that the benefit of the doubt should be in the favor of the injured worker. Results as in this case reveal these words to be mere lip service, totally devoid of meaning.

January 24, 2013

Bad Faith Causes Denial of Reinstatement to Total Disability Benefits

When an injured worker in Pennsylvania goes back to modified duty work, and then loses that job through no fault of his own, typically the injured worker is entitled to a reinstatement of benefits, back to total disability benefits. Of course, as always, there are exceptions to the rule. One of the exceptions is when an injured worker’s benefits are modified by a finding of “bad faith.”

We saw this issue addressed by the Commonwealth Court of Pennsylvania in Napierski v. Workers’ Compensation Appeal Board (Scobell Company, Inc.). Here, the injured worker, a plumber, hurt his leg. The injury was accepted as compensable by the workers’ comp insurance carrier and total disability benefits were started.

To avoid continued payment of workers’ compensation benefits, the workers’ comp insurance carrier then lowered itself to the use of “funded employment,” a disgraceful, yet perfectly legal, tactic. The employer paid a company (Expediter) to have another company (IDI) hire the injured worker, with the original employer paying the salary (if it sounds a little fishy, well . . . that’s because it is).

The injured worker started modified duty work for IDI in October, 2004. The IDI offices moved in March 2005, and, then again, in August 2005, both times for heating malfunctions and mouse infestations. Upon finding mouse feces in the paperwork which had been shipped from one IDI location to the next, the injured worker decided they were “playing games” with him and he quit on the spot.

Employer filed a Petition to Modify the compensation benefits, saying the job was available to the injured worker and he refused it. A Workers’ Compensation Judge (WCJ) agreed and granted the Petition to Modify, finding that the injured worker “refused in bad faith” to work there. This finding was affirmed by the Workers’ Compensation Appeal Board (WCAB) and the Commonwealth Court of Pennsylvania.

After this litigation ended, the injured worker asked his employer to fund the job again, and let him try it again. The employer refused. Since the job was no longer available to him, the injured worker then filed a Petition for Reinstatement. The WCJ denied the Petition. Because the benefits were modified for a “bad faith” refusal to work, the burden of proof became higher. The injured worker now had to prove that he was no longer physically capable of performing that modified duty job. Since the injured worker did not meet that burden of proof, the Petition to Reinstate was denied. This was affirmed by the WCAB.

Upon further appeal, the Commonwealth Court of Pennsylvania affirmed. The Court agreed with the standard as related by the WCJ. Discussion regarding whether the “funded employment” position was temporary or permanent was cut short, as the Court found this was a matter for the Modification Petition which was previously litigated. Once the benefits were modified due to bad faith, the showing that a job was available to the injured worker was no longer necessary. The only issue left was the standard for reinstatement in this situation. As the Court stated:

Claimant refused, in bad faith, to work at a job he was capable of performing. In order to have his benefits reinstated, he was required to prove that his physical condition had worsened so that he could not do the job provided to him at IDI. He did not do so.”

January 17, 2013

Injured PA worker Denied Benefits Due to Not Having Transportation

Once an injured worker in Pennsylvania establishes that he or she is disabled from work, due to the work injury, typically the workers’ compensation benefits continue (at the “temporary total disability” rate) until either the injured worker goes back to work, fully recovers, settles the case, or, loses litigation which shows that the injured worker has a “wage earning capacity.”

This last situation is often the one leading to the most unfair results. Recently, in North Pittsburgh Drywall Co., Inc. v. Workers’ Compensation Appeal Board (Owen), the Commonwealth Court of Pennsylvania reversed the decision of a Workers’ Compensation Judge (WCJ), which had been affirmed by the Workers’ Compensation Appeal Board (WCAB), and ruled that benefits should be suspended (or at least modified, depending on the earnings), when the injured worker had no transportation to get to a modified job.

The injured worker in this case hurt his right wrist while doing his job in 2001. About a week after the work injury, his car was repossessed (there was no credited allegation that the repossession had anything to do with the injury or the delayed receipt of workers’ compensation benefits). The injury was accepted as work-related by the workers’ comp insurance carrier, who issued a Notice of Compensation Payable (NCP). In 2003, the employer offered the injured worker a modified duty job, the duties of which were approved by his treating physician. The job was located about 90 minutes from the injured worker’s home, about the same as the pre-injury position. Unfortunately, at that point, the injured worker still had no car.

Borrowing his father’s car, the injured worker went back to work at this modified job for two or three days, and had no difficulty performing the job. When his father needed his car back, however, the injured worker could no longer get to the job and therefore stopped working. The injured worker was never paid for the two or three days he worked, and the workers’ compensation insurance carrier stopped paying benefits.

A long and tortured litigation ensued, which involved multiple appeals. Ultimately, the WCJ had both a Suspension/Modification Petition (filed by the workers’ compensation insurance carrier to stop, or reduce, benefits) and a Petition for Penalties (filed by the injured worker since the workers’ compensation insurance carrier simply stopped paying workers’ comp benefits). The WCJ denied the Suspension/Modification Petition, finding that the injured worker lost the job through no fault of his own, and that, since he was never paid by the employer, there were no wages to support a suspension or modification. The Petition for Penalties was granted, since the benefits were stopped without a sufficient legal basis. This was affirmed by the WCAB upon appeal.

The Commonwealth Court of Pennsylvania approached this case somewhat differently. While the Court agreed that perhaps the injured worker lost the job “through no fault of his own,” typically the burden in a Petition for Reinstatement, the Court then added that, in a Petition for Suspension, the inquiry is whether the “disability, ie: loss of earnings, was related to non-work injury factors.” Because the injured worker lost the job here for reasons not related to the claimant’s work injuries, the Court reversed the decision of the WCJ and WCAB, which denied the Petition for Suspension. The matter was, yet again, sent back (“remanded”) to the WCJ to determine the wages of the job at issue (to decide whether the benefits should be reduced or stopped entirely). The Petition for Penalties was affirmed, as the fact the employer was ultimately successful did not justify the insurer unilaterally stopping the benefits.

January 2, 2013

Pain Medication Denied to Injured PA Worker

Not long ago, we discussed our belief that the Pennsylvania Chamber of Commerce and PA workers’ comp insurance industry will soon be gearing up to have legislation introduced to curtail the rights of injured workers in PA. As we mentioned, the Utilization Review (UR) process is squarely on their radar for reform. Considering the Commonwealth Court of Pennsylvania recently denied an injured worker’s access to strong pain medication she testified she needed to relieve her intense pain, one must wonder how much more reform they would like.

In Bedford Somerset MHMR v. Workers Compensation Appeal Board (Turner), the injured worker was hurt in 1987 and underwent two surgeries on her lumbar spine as a result of her work injury. She was left with several diagnoses, including arachnoiditis, failed spinal fusion surgery, small fiber neuropathy, chronic pain syndrome, discitis, osteomyelitis and spinal stenosis, any or all of which can account for tremendous pain.

Given her severe pain, the injured worker was understandably taking heavy-duty medications. As has become custom in such situations, the ever-sympathetic insurance carrier filed a UR, alleging the mediations were not reasonable and necessary. The UR reviewer issued a determination finding that Fentanyl patches, and periodic office visits to the prescribing physician, were reasonable and necessary, but that the use of Fentanyl lozenges were not.

The injured worker appealed the UR determination and litigation ensued before a Workers Compensation Judge (WCJ). During this litigation, the injured worker testified that during the last 20 years, she tried at least 12 different pain medications, which did not control her pain or she could not tolerate. Non-steroidal medications, and narcotics such as Oxycontin, Oxycodone, MS Contin, and Morphine all caused side effects too significant to permit their use. The current medications, which include Fentanyl lozenges, however, help alleviate the squeezing, crushing and burning feeling she experiences. According to the Court, “Claimant testified the Fentanyl lozenges work quickly and reduce her pain; she does not feel she could continue to live without the ability to control her breakthrough pain.”

Claimant’s physician testified that he could find some alternate cocktail of medications, instead of the Fentanyl lozenges, with the help of a pain management specialist. However, if the current medications had to be decreased or stopped, the injured worker would require treatment at a pain clinic, to minimize problems with the withdrawal process (an issue we have mentioned before as extremely dangerous in the UR context).

The workers’ compensation insurance carrier presented testimony from a doctor who performed an Independent Medical Examination (IME), who testified the use of Fentanyl lozenges was intended just for cancer and AIDS patients, and should not be used in a chronic pain setting, as the patient would simply build up a tolerance to the already-strong medication (and the injured worker in this case, admittedly, required an increasing dosage).

Having heard all of this testimony, the WCJ found the Fentanyl lozenges to be not reasonable and necessary, since this medication is approved only for cancer patients, and is highly addictive. The WCJ cited the increasing usage by the injured worker in support of his findings.

On appeal, the Workers Compensation Appeal Board (WCAB) reversed the decision of the WCJ. The WCAB found that:


Claimant’s credible testimony establishes that she has tried a number of other pain medications and has found that they either do not relieve her pain or that her body has an adverse reaction to them. We do not believe that [Employer] has put forth sufficient evidence to meet its burden of proving that the Fentanyl lozenges were not reasonable and necessary, especially in light of Claimant’s prior difficulties in finding a viable pain medication regimen.”


Upon further appeal, however, the Commonwealth Court of Pennsylvania reversed the WCAB and reinstated the decision rendered by the WCJ. The Court noted that risk to the patient is relevant to determine whether medication is reasonable and necessary. In making his decision, the WCJ found the Fentanyl lozenges unreasonable and unnecessary because of their use being limited to cancer patients, given their highly addictive nature. Therefore, said the Court, the decision of the WCJ is supported by the evidence.

December 18, 2012

Worker Injured During Sex Entitled to Workers’ Comp Benefits

Granted, the decision is not from a Court in Pennsylvania, but, instead, one in Australia. At the same time though, a Court finding that a worker injured while having sex is entitled to workers’ compensation benefits, is one which cries out to be explored. And, the result is not as bizarre as one might think.

As we have previously addressed, employees in PA are either “stationary” or “travelling,” depending on whether they have a fixed place of employment. A travelling employee, one who is without a fixed place of employment, has greater latitude for a finding that an injury is within the scope and course of his or her employment.

In the Australian case, according to the article, the unidentified female employee was on a business trip in 2007. While engaged in sexual relations in her hotel room, “a glass light fitting was torn from its mount above the bed and landed on her face.” The injury resulted in her being disabled from performing her job.

The workers’ comp claim was initially approved, but then rejected upon appeal, finding the injury was not suffered in the scope and course of her employment. As the article noted, the appellate level Court found, “the government had not induced or encouraged the woman's sexual conduct . . . the sex was ‘not an ordinary incident of an overnight stay’ such as showering, sleeping and eating.”

Upon further appeal, however, this determination was reversed, and the injury was found to be within the scope and course of the travelling employee’s employment, such that she is entitled to workers’ compensation benefits. As noted in the decision, “’If the applicant had been injured while playing a game of cards in her motel room, she would be entitled to compensation even though it could not be said that her employer induced her to engage in such activity.’"

The decision was then affirmed upon appeal, with the Court finding that the views, and approval, of the employer with regard to the activity at issue were irrelevant. The award of workers’ compensation benefits were upheld.

In law, we sometimes refer to a “frolic” as something being done outside the scope and course of employment. This case gives a new twist to our use of this term.

December 11, 2012

Rights of Illegal Alien to PA Workers’ Comp Heard by PA Supreme Court

As we have previously discussed on this blog, generally speaking, Pennsylvania workers’ compensation benefits are available to every totally disabled injured worker, regardless of whether that injured worker has legal status to work in this Country or not. The issue of legal status does matter, however, when the injured worker retains some ability to perform gainful employment.

Last year, the Commonwealth Court of Pennsylvania decided Kennett Square Specialties v. Workers’ Compensation Appeal Board (Cruz), finding that the legal status of an injured worker cannot be proven by a workers’ comp insurance carrier solely by having a Workers’ Compensation Judge (WCJ) take a negative inference because the injured worker refuses to answer questions regarding his legal status.

The Supreme Court of Pennsylvania accepted appeal of this case, and recently heard oral arguments from the respective attorneys. As always, we will advise you when a decision is rendered by the Court.

December 7, 2012

Burden of Proof Less for Physical/Mental Case in PA Workers’ Comp

Loyal readers of our blog know that it can be very difficult to have a psychological injury accepted as compensable in Pennsylvania workers’ compensation. However, what you may not realize is that psychological injuries are divided into three classes, and only one of those classes carries this higher burden of proof.

Under PA workers’ comp, a psychological injury is referred to as either mental/physical, physical/mental or mental/mental. The first meaning a mental stimulus causes a physical injury (like stress causing a heart attack), the second meaning a physical injury causes a mental injury (like depression from chronic pain), and the third meaning a psychological stimulus causes a psychological injury.

Only the mental/mental class has that increased burden of proof. As we have discussed in the past, these types of cases require a showing that the mental stimulus comes from an exposure to “abnormal working conditions.” Obviously, then, it would be very beneficial if an injured worker could move his or her case into the physical/mental category. Recently, Commonwealth Court of Pennsylvania addressed the distinction between the two.

In New Enterprises Stone & Lime Co. v. Workers’ Compensation Appeal Board (Kalmanowicz), the injured worker was driving a truck when an oncoming vehicle veered into his lane, causing a head-on crash, which killed the other driver. The injured worker was bruised, but was not physically disabled by the collision. As one might imagine, however, the injured worker did develop post-traumatic stress disorder (PTSD), and that condition rendered him unable to perform his driving job.

The Workers’ Compensation Judge (WCJ) granted the Claim Petition, finding the injury to fall under the physical/mental classification (meaning there was no requirement that “abnormal working conditions” be shown). This was affirmed by the Workers’ Compensation Appeal Board.

Upon further appeal, Commonwealth Court also affirmed. The Court rejected the employer’s contention that physical/mental injuries require the physical injury to be significant. Specifically, the Court observed that the physical injury, in a physical/mental situation, need not be disabling. The burden is simply to prove that “a physical stimulus resulted in a mental disability.” Since the collision in this case was certainly a physical stimulus, and the WCJ found the mental disability was related to the collision, the Court concluded that the WCJ was correct in granting the Claim Petition.

October 18, 2012

PA Court Condones Blatant Violation of Pennsylvania Workers’ Compensation Act

Once workers’ compensation benefits in PA are started, usually by issuance of a Notice of Compensation Payable (NCP), under the Pennsylvania Workers’ Compensation Act, generally a workers’ comp insurance carrier cannot stop the payment of such benefits without a Supplemental Agreement, a Notice of Benefits Offset or a judicial order. Typically, if a workers’ comp insurance carrier uses “self help” and stops the payment of benefits in this situation, without proper basis, penalties will be assessed.

In a recent decision by the Commonwealth Court of Pennsylvania, however, the majority of the judges permitted such an unlawful stoppage of benefits with no consequences. The injured worker in Krushauskas v. Workers’ Compensation Appeal Board (General Motors) hurt his shoulder and an NCP was issued. While receiving workers’ compensation benefits, the injured worker accepted a retirement pension. We already know from prior case law that acceptance of a retirement pension can lead to a suspension of workers’ compensation wage loss benefits (a switching of burdens which continues to annoy and confuse us, but that is another blog entry for another day).

Rather than file a Petition for Suspension, which would almost certainly have been successful, the workers’ comp insurance carrier simply stopped paying the workers’ compensation benefits without any legal basis to do so. The injured worker then filed a Petition for Penalties.

The workers’ comp insurance carrier defended the Petition for Penalties by arguing that the injured worker had voluntarily retired, and that a suspension of benefits should be approved. Logically, however, that defense has nothing to do with the petition pending, which involves a question of solely whether the insurance carrier violated the Pennsylvania Workers’ Compensation Act (a finding that is not even in dispute).

The Workers’ Compensation Judge (WCJ) found that the insurance carrier did violate the Pennsylvania Workers’ Compensation Act by stopping the benefits without a legal basis. However, the WCJ went on to note that since the injured worker did voluntarily retire, no benefits would be payable after the insurance carrier stopped making payments. Thus, the WCJ concluded that a suspension (without even a Suspension Petition being filed) should be granted. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

Upon further appeal, the Commonwealth Court of PA affirmed. The Court noted that, in the PA workers’ comp system, the form of the pleading is not absolute and that a WCJ can conform a decision to the evidence presented, as long as there is not prejudice or unfair surprise. Since the injured worker was aware, though the evidence presented by the insurance carrier, that a suspension was being sought, the granting of a suspension, even without a Suspension Petition, was proper. The Court further noted that the evidence presented, primarily the acceptance of a retirement pension, did support a finding that the injured worker had voluntarily retired.

As a strong two-judge dissent noted, the defense offered by the workers’ comp insurance carrier is “a defense akin by a murderer that the victim deserved to die.” The dissent observed that none of the evidence presented about retirement was relevant to the Petition for Penalties. The dissent would have granted the Petition for Penalties, since the insurance carrier obviously violated the Act, and ordered payment retroactive to when the payments were stopped, plus penalties and interest.

We obviously support the position beautifully stated by the dissenting judges. It seems absurd that an insurance carrier can blatantly violate the Act and stop paying benefits, then have a Court absolve them of any blame and condone such action. The law requires steps be taken by a workers’ compensation insurance carrier when it believes it is entitled to a suspension. Almost always, benefits continue to be paid to the injured worker during the litigation (part of the process called “Supersedeas”). It is inconceivable that the Petition for Penalties did not result in an order to immediately reinstate compensation benefits retroactively to when they were unlawfully stopped, with penalties and interest. Such a decision will, no doubt, lead to more insurance carriers becoming emboldened and taking the law into their own hands. When we think of Courts as the forum to protect us, the people, we can only shake our heads in sadness at the miscarriage of justice in this case.

October 5, 2012

Notice of Ability to RTW Not Necessary Where Claimant Has Knowledge

The Pennsylvania Workers’ Compensation Act, in Section 306(b)(3), requires that an insurance carrier provide notice (in the form of a “Notice of Ability to Return to Work”) to an injured worker when the carrier receives information that the injured worker is able to work in any capacity. This notice is generally a threshold requirement before the carrier can move to modify or suspend workers’ compensation benefits based on a job offer or a Labor Market Survey.

Therefore, if a Notice of Ability to Return to Work is not issued, typically, the carrier cannot prevail on a Petition to Modify or Suspend workers’ comp benefits. There are exceptions to this rule, including a situation where an injured worker has already returned to gainful employment. Recently, the Commonwealth Court of Pennsylvania dealt with another situation where the injured worker did not receive the Notice of Ability to Return to Work before a job offer was made.

In Smith v. Workers’ Compensation Appeal Board (Caring Companions, Inc.), the injured worker’s attorney received a medical report releasing the injured worker to light duty work. Since there was currently litigation (Claim Petition) pending, the attorney then properly sent a copy of this report to the workers’ comp insurance carrier. A job offer letter was sent to the injured worker after the receipt of this report, but a Notice of Ability to Return to Work was not issued.

The Workers’ Compensation Judge (WCJ) granted the Claim Petition, but then modified the workers’ comp benefits based on the job offer. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

Upon further appeal, the Commonwealth Court of Pennsylvania affirmed, disagreeing with the argument of the injured worker. The Court found that the failure to issue the Notice of Ability to Return to Work in this case was insignificant, because the information that was (as a result) not disclosed had come from the injured worker herself (albeit through her attorney). It would seem this was a reasonable decision by the Court, as it would to be a silly result for the Court to punish the insurance carrier for failing to tell the injured worker something that she certainly already knew.

October 1, 2012

PA Unemployment Compensation Benefits Allowed Despite Use of “Moron”

While we limit our practice to representing injured workers in Pennsylvania workers’ compensation cases, We could not help but notice a recent PA unemployment compensation case decided by the Commonwealth Court of Pennsylvania.

Unemployment compensation benefits are generally available in Pennsylvania when an employee involuntarily loses his or her job, provided there was no “willful misconduct.” What constitutes “willful misconduct,” as is so often in the law, varies from case to case.

In the case of Brown v. Unemployment Compensation Board of Review, the employee was a battery machine operator. When he placed a sign on a defective battery stating “do not use,” the sign had been ignored. He then put signs on defective batteries, stating, “To the moron who can’t read do not use this,” “do not use this battery” and “Not charging you moron.” The employee was promptly terminated for his use of the word “moron.”

The local Unemployment Compensation Service Center denied the application for unemployment compensation benefits, a finding echoed by an unemployment compensation referee and then the Unemployment Compensation Board of Review (Board). All found the behavior of the employee to be “willful misconduct.”

Upon further appeal, the Commonwealth Court of Pennsylvania disagreed, reversing the decision of the Board and allowing unemployment compensation benefits. In pertinent part, the Court concluded:

Because ‘moron’ is neither a threatening word nor a word totally outside the bounds of what one might expect to encounter in a large and busy warehouse, we conclude that Claimant’s use of the word “moron” did not rise to the level of willful misconduct.”

September 19, 2012

PA Workers Comp Settlement Cannot be Reopened For Medical Bill

Settling a workers’ compensation case in PA, generally referred to as a “Compromise & Release,” is a big decision. There are many factors which go into not only the value of the case, but whether settlement is even advisable. The advice of an attorney who is experienced with PA workers’ comp cases can be very valuable. This goes for the settlement itself, as well as the documents carrying out the settlement.

Recently, the Commonwealth Court of Pennsylvania decided the matter of Hoang v. Workers’ Compensation Appeal Board (Howmet Aluminum Casting, Inc.). In this case, the injured worker settled his case (by executing a Compromise & Release Agreement). Sometime after the settlement, the injured worker learned that his treating doctor had an outstanding bill for over $37,000.00.

An appeal of the Compromise & Release Agreement could not be filed (since one only has 20 days to file such an appeal), so the injured worker filed Review and Penalty Petitions, seeking payment of this medical bill. The Workers’ Compensation Judge (WCJ) noted that the Compromise & Release Agreement failed to state that the workers’ compensation insurance carrier would be responsible for any medical bills. Since this is a somewhat common statement in a PA workers’ comp settlement, the WCJ called this “telling.” The injured worker argued there was a “mutual mistake of fact,” so the settlement should be reopened. Ultimately, the WCJ denied the Petitions, finding that the workers’ compensation insurance carrier did not violate the Pennsylvania Workers’ Compensation Act because the Compromise & Release Agreement did not require payment of this bill. No mutual mistake of fact was seen by the WCJ. The decision was affirmed by the Workers’ Compensation Appeal Board (WCAB).

The injured worker then filed an appeal to the Commonwealth Court of Pennsylvania, but was no more successful. The denial by the WCJ was affirmed. Essentially, the Court found that the injured worker failed to prove that there was a “mutual mistake,” nor did the injured worker show that there was even a unilateral mistake on his part, of which the Defendant was aware. No evidence showed, nor did the Compromise & Release Agreement state, that the injured worker expected any medical bills (past or future) to be paid as part of the settlement.

September 5, 2012

Workers’ Comp Fatal Claim Benefits Granted While Employee at Lunch

Ordinarily, to be compensable as a work injury in Pennsylvania, an injury must take place while the injured worker is in the “scope and course” of his or her employment. Interestingly, the phrase “scope and course” is not even mentioned in the Pennsylvania Workers’ Compensation Act, though the concept, derived from case law, has great importance.

An injured worker with a fixed place of employment (“stationary employee”) is generally covered for an injury away from the fixed place of employment only if he or she is actually furthering the affairs of the employer. In contrast, a travelling employee (one with no fixed place of employment), has a greater latitude of when he or she is within the scope of employment.

Recently, the Commonwealth Court of Pennsylvania issued a decision in Pennsylvania State University v. Workers’ Compensation Appeal Board (Rabin, Deceased), finding that the injured worker, a stationary employee, was still within the scope and course of his work when he was injured at the salad bar at a nearby restaurant.

The injured worker, Mr. Rabin, was a professor at Penn State University. As part of his duties, he worked with students, helping them prepare dissertations. Given his class schedule, and the schedules of the doctorial students, Mr. Rabin would sometimes meet the students at local restaurants to review their dissertations.

One day, Mr. Rabin was doing just that, when he tripped and fell at the salad bar. He was discussing a dissertation with a student just prior to getting up to go to the salad bar, and the student anticipated that they would be continuing the discussions as they ate. In the fall, Mr. Rabin suffered a fracture/dislocation to his left shoulder and a left humeral shaft fracture. Worse, after having surgery for the injury, Mr. Rabin developed an infection which ultimately ended his life.

A Fatal Claim Petition was filed by Mr. Rabin’s widow. The Workers’ Compensation Judge (WCJ) granted the Petition, finding that Mr. Rabin was indeed furthering the interests of the employer in meeting with the student at the restaurant. Thus, he was within the scope and course of his employment at the time of the injury. This decision was affirmed by the Workers’ Compensation Appeal Board (WCAB).

The Commonwealth Court of Pennsylvania also affirmed the granting of the Fatal Claim Petition. Though the meeting took place off site, the Court found the injury still took place within the scope and course of the employment:

On these facts, Decedent’s trip to the salad bar cannot logically be construed as anything more than an inconsequential departure from his work as a professor, in which he was essentially engaged at the time. Therefore, we reject Employer’s contention that Decedent was not in the course and scope of his employment when he fell and sustained his shoulder injuries on October 20, 2006.”

July 19, 2012

Claim Pet denied – Driving forklift not in scope and course

As we have discussed previously, generally, an injury which takes place at work is compensable by Pennsylvania workers’ compensation benefits. Our previous blogging noted one exception, being “violation of a positive work order.” Recently, this issue was again addressed by the PA Courts.

In the case of Miller v. Workers’ Compensation Appeal Board (Millard Refrigerated Services), the Commonwealth Court of Pennsylvania affirmed the decision of a Workers’ Compensation Judge (WCJ), denying a Claim Petition. In this case, the injured worker finished his shift and was driving a forklift to the area where he would punch out for the day. In so doing, he managed to crush his foot against a pole. The problem is that he was not certified to drive a forklift, knew he was not permitted to drive a forklift, and testified that he was using the forklift simply because it was “fun to drive.”

The WCJ noted, and the Commonwealth Court agreed, that all of the elements of the violation of a positive work order defense were present. Specifically, citing the famous 1995 Commonwealth Court case of Nevin Trucking v. Workmen’s Compensation Appeal Board (Murdock), the Court said:

When an employer raises the affirmative defense of a violation by an employee of a positive order or rule, the employer must prove “that (1) the injury was, in fact, caused by the violation of the order or rule; (2) the employee actually knew of the order or rule; and (3) the order or rule implicated an activity not connected with the employee’s work duties.”

Since all of the elements were met, the WCJ, and the Court, found that the injured worker violated a positive work order, making him ineligible for PA workers’ compensation benefits.

July 10, 2012

Executives Can Decline PA Workers’ Comp Coverage

Generally, the coverage of employees for Pennsylvania workers’ compensation benefits is mandatory. There are narrow exceptions to this rule, as there are exceptions to most rules. One of those exceptions deals with Section 104 of the Pennsylvania Workers’ Compensation Act (WCA), wherein an executive officer of a corporation, who holds an ownership interest in the corporation, may be able to elect NOT to be an “employee” under the WCA.

To make sure this election is intentional, certain forms must be completed and signed by the executive at issue to accomplish the exclusion from workers’ comp coverage. But what happens if the executive did not actually mean to be excluded from coverage?

The Commonwealth Court of Pennsylvania faced such an issue in Anthony Wagner v. Workers’ Compensation Appeal Board (Anthony Wagner Auto Repairs & Sales, Inc.). Here, the injured worker was an owner and executive officer of a corporation. In setting up the corporation and insurance, the injured worker simply signed all of the papers he was given without really reading them (yet another example of the insanity of doing such a thing). The injured worker did not mean to exclude himself from workers’ compensation coverage.

When he was injured, the executive filed a Claim Petition for workers’ comp benefits. The case was “bifurcated” on the issue of whether he was excluded from workers’ comp coverage (“bifurcation” is done when a case has a threshold issue the parties want resolved before litigating the entire case). The Claim Petition was denied by the Workers’ Compensation Judge (WCJ), who found that the injured worker had elected to exclude himself from workers’ compensation coverage. This was affirmed by the Workers’ Compensation Appeal Board.

Upon further appeal, the Commonwealth Court of PA also affirmed the denial of the Claim Petition. In the proceedings before the WCJ, the injured worker was found not credible. The WCJ found that the injured worker intentionally and knowingly requested in writing to be excluded from workers’ compensation coverage. It was mentioned, in essence, that one is bound by what they sign. The Commonwealth Court simply observed that the WCJ found that the injured worker intentionally and knowingly signed the forms required by the WCA to be excluded from coverage for workers’ comp benefits in PA, so the injured worker was properly excluded from coverage.

Aside from the obvious lesson, to always read a document like this (and perhaps get the opinion of an experienced PA workers’ compensation attorney), there is also a lesson for those executives who truly do wish to be excluded from workers’ comp coverage. It is important to make arrangements for alternative coverage, perhaps with some type of private disability policy. Electing to exclude yourself from PA workers’ comp coverage can have a dramatic and tragic impact on the injured worker and his or her family.

July 2, 2012

Supreme Court of PA Loosens Requirement of Statutory Employer Definition in PA Workers’ Comp

Though it is somewhat less critical since the advent of the Uninsured Employers’ Guaranty Fund (UEGF), the concept of “statutory employer” still has an important place in the Pennsylvania workers’ compensation system. Basically, the theory of statutory employer is used when a subcontractor is the employer of an injured worker, and the subcontractor fails to carry PA workers’ compensation coverage (which, by the way, is against the law in PA). Under this theory, the injured worker may be able to recover against the workers’ compensation insurance held by the general contractor.

For many years, the ability for an injured worker to use the statutory employer concept was greatly limited by a restrictive “test” established in the 1930 Pennsylvania Supreme Court decision in McDonald v. Levinson Steel Co. (for many years, simply known as the “McDonald Test”). Recently, the PA Supreme Court took another look at the requirements to meet statutory employer in Six L’s Packing Co. v. Workers’ Compensation Appeal Board (Williamson).

Thanks to the efforts of the injured worker’s attorney in Williamson, and the fine assistance from the Pennsylvania Association for Justice, the Supreme Court eased the situations when the narrow McDonald Test is now required. Specifically, the Court held that, “Viewing the statutory scheme as a whole, however, and employing the principle of liberal construction in furtherance of the Act’s remedial purposes . . . we find it to
be plain enough that the Legislature meant to require persons (including entities)
contracting with others to perform work which is a regular or recurrent part of their
businesses to assure that the employees of those others are covered by workers’
compensation insurance, on pain of assuming secondary liability for benefits payment
upon a default.” The Court also made clear that, unlike in situations involving the McDonald Test, the fact that the “general contractor” may be the actual owner of the land does not preclude the finding of a statutory employer.

We applaud the PA Supreme Court, the injured worker, and the Pennsylvania Association for Justice for giving us this much needed refinement to the concept of statutory employer.

June 22, 2012

“Loss of Use” in PA Workers’ Comp Need Not be Complete

We have previously blogged about “specific loss” benefits in Pennsylvania workers’ comp. These are benefits available to an injured worker, other than indemnity (wage loss) and medical. When an injured worker loses the use of a body part (or suffers from facial disfigurement), he or she may be eligible for these “specific loss” benefits.

The issue in these types of cases often revolves around what constitutes “lose of use.” The Pennsylvania Workers’ Compensation Act, and interpreting case law, tells us that the body part must have been lost “for all practical intents and purposes.” What that phrase means, of course, is often litigated.

The Commonwealth Court of Pennsylvania recently addressed this issue in Miller v. Workers’ Compensation Appeal Board (Wal-Mart). As so frequently is the case, this was a very serious injury; the parties stipulated that the work injury would be described as “left spiral humeral fracture post-operative, left shoulder adhesive capsulitis and weakness, and radial nerve palsy.”

In the pending litigation, the injured worker sought to have benefits awarded for the specific loss of her left arm (she had gone back to modified duty work, so she was no longer receiving total disability benefits). The Workers’ Compensation Judge (WCJ) denied the Petition on the basis that the injured worker failed to prove that she had lost the arm for all practical intents and purposes. More specifically, the WCJ determined that the injured worker failed because she retained use of her hand and forearm, which precluded a loss of use of the arm.

On further appeal, the Commonwealth Court agreed with the injured worker that the WCJ used an incorrect standard – there is in fact no requirement that there be loss of the hand or forearm to obtain loss of use of an arm. The Court explained that the body part at issue need not be 100% useless to qualify as lost “for all practical intents and purposes.”

However, the Court still affirmed the decision of the WCJ. In his findings of fact, the WCJ rejected the testimony of the injured worker, and her medical expert, regarding her limitations. Surveillance video showed her using the shoulder in greater ways than she admitted in her testimony. Though the injured worker was no doubt limited, the use of the shoulder was greater than that needed for the arm to be lost “for all practical intents and purposes.”

June 18, 2012

No Reinstatement for Injured Worker After Losing Light Duty Job

As a general rule, when an injured worker in PA loses a light duty job, through no fault of his or her own, temporary total disability benefits are to be reinstated. Like any general rule, of course, there are exceptions. One of the major exceptions involves the time period at issue.

We have previously discussed that reinstatement from partial to total disability benefits under the Pennsylvania Workers’ Compensation Act can usually be accomplished at any time during the 500-week maximum entitlement period for partial disability benefits. During those 500 weeks, the injured worker need only demonstrate that employment is no longer available within his or her physical capabilities (through no fault of the injured worker).

As the Commonwealth Court of Pennsylvania recently addressed in Sladisky v. Workers’ Compensation Appeal Board (Allegheny Ludlum Corp.), the situation is much different after the 500-week period expires. While a Petition for Reinstatement is not time-barred if filed within three years of the date of last payment of workers’ compensation benefits (after the 500-week period expires), the burden of proof is much different, and much more difficult for the injured worker.

In Sladisky, the injured worker fractured his right leg and left ankle. After a few periods of partial and total disability, the workers’ comp insurance carrier resorted to “funded employment,” to place the injured worker back onto partial disability benefits (restarting the clock on the 500 weeks). “Funded employment” is a tool used by workers’ compensation insurance companies, where they place the injured worker with an agency, perhaps a charitable institution, and the insurance carrier pays the injured worker to be an employee of the agency. While the concept of “funded employment” could be something noble, the use of it to simply manipulate the system is completely evident in this case.

Once his 500 weeks expired, Mr. Sladisky was laid off – the workers’ comp insurance carrier advised the actual “employer” that they would no longer pay the injured worker’s salary; this, of course, caused the “employer” to get rid of the injured worker. In turn, Mr. Sladisky filed a Petition for Reinstatement; after all, he lost his light duty job through no fault of his own (in truth, he lost it through the direct fault of the insurance carrier). In the litigation, Mr. Sladisky agreed he would still be working at that job if he was not laid off.

The Workers’ Compensation Judge (WCJ) granted the Petition for Reinstatement. Though the standard does change after the 500 weeks expire, and the injured worker would normally have to prove there was a change of condition, such that the Mr. Sladisky was no longer capable of the light duty position, the WCJ believed there should be an exception for “funded employment.”

This was reversed upon appeal by the Pennsylvania Workers’ Compensation Appeal Board (WCAB), which found there is no such exception as that envisioned by the WCJ and Mr. Sladisky failed to meet the required burden of proof.

Upon further appeal, the Commonwealth Court of PA agreed with the WCAB. The Court found no difference between an employer creating a light duty job, and an employer funding employment with some agency. Either way, went the Court’s reasoning, the light duty job is not a job generally available to the public, and the injured worker failed to meet the increased burden of proof. Perhaps that reasoning, however, should show the silliness of the change in standards either way. Here we have an employer directly causing a loss in wages due to a work injury; how can it be justice for a heightened standard of proof when the employer’s own actions created the unavailability of the job?

June 13, 2012

Intoxicated Injured Worker Not Entitled to PA Workers’ Comp

An injured worker in Pennsylvania is generally entitled to workers’ compensation benefits when the injured worker is disabled from his or her job as a result of the work injury, unless the loss in earnings is due to the injured worker’s own bad conduct. In these types of cases, the analysis focuses on the reason the injured worker now has a loss in wages.

In BJ’s Wholesale Club v. Workers’ Compensation Appeal Board (Pearson), the Commonwealth Court of Pennsylvania addressed the issue of whether wage loss was related to a work injury, and whether workers’ comp benefits should be awarded. A Claim Petition was litigated before a Workers’ Compensation Judge (WCJ), who found that the injured worker did hurt her left foot and was disabled from her pre-injury position. The injured worker was then given a light duty job, from which she was fired due to being intoxicated at work. The WCJ nonetheless awarded workers’ compensation benefits to the injured worker since she had not shown any signs of intoxication, and since her pain medications for the work injury may have impacted the blood alcohol test.

The Commonwealth Court of Pennsylvania reversed the decision of the WCJ. While acknowledging that the WCJ is the ultimate finder of fact, the Court decided that benefits could not be awarded on the facts as found by the WCJ. Whether the injured worker showed signs of intoxication was irrelevant – the blood alcohol test, as found credible by the WCJ, showed that the injured worker was indeed intoxicated (and that the employer had a policy enabling termination for such an offense). Meanwhile, testimony that pain medications “may have” impacted the blood alcohol testing was equivocal and unable to support a finding of fact. To properly support a finding of fact, medical evidence must be given to a reasonable degree of medical certainty; that something “could have been” or “may have been” will not rise to this level.

As such, the injured worker could not sustain her burden of proof that her work injury caused her loss of earnings, so disability benefits were properly denied.

June 4, 2012

PA Supreme Court Says Current Wages Valid for PA Workers’ Comp Injury

The Supreme Court of Pennsylvania recently weighed in on the case of Lancaster General Hospital v. Workers' Compensation Appeal Board (Weber-Brown). As our loyal readers may recall, back in 2009, the Commonwealth Court of Pennsylvania granted “specific loss” benefits for the loss of an eye in 2007, despite the onset around 1980, and used the injured worker’s wages in 2007 (with a different employer) on which to base the Average Weekly Wage (AWW).

On appeal to the Supreme Court, the Employer did not argue whether the date of injury was properly in 2007 (when the injured worker was told she had lost her eye for all practical intents and purposes) rather than 1980 (when the injured worker was exposed to herpes simplex virus). Instead, the main thrust of the Employer’s argument was that the AWW should be based on her wages with Employer (whom the injured worker was last employed by in 1985), rather than based on her wages for a different employer in 2007.

The Supreme Court affirmed the decision by the Commonwealth Court of Pennsylvania, holding that the AWW was properly based on the wages earned by the injured worker in 2007, regardless of the fact the injured worker was no longer working for Employer. The Court first noted that the PA Workers’ Compensation Act is “intended to benefit the injured employee, and, therefore, must be construed liberally in the employee’s favor in order to effectuate the Act’s humanitarian objectives,” the Court then added, “As such, borderline interpretations are to be decided in favor of the claimant.”

In then looking at the actual language of the Pennsylvania Workers’ Compensation Act, in Section 309, the Court reasoned that the term “employer” is not meant to be limited to the employer who is responsible for the payment of the workers’ compensation benefits. Instead, the Act is designed to reflect the economic reality of the injured worker’s situation. The Act, said the Court, must be construed to mean the employer at the time of the injury. Since the injury here was found to take place in 2007, when the eye was lost, the wages should be determined by looking at the earnings of the injured worker in 2007 (regardless for whom the injured worker was then employed).

May 21, 2012

Injured Worker Not Punished for Layoff in PA Workers’ Comp

We have addressed the effect a layoff has on an injured worker in Pennsylvania before. Under the 2005 Supreme Court of Pennsylvania decision in Reifsnyder v. Workers’ Compensation Appeal Board (Dana Corp), an injured worker who had been laid off for periods of time before his or her injury receives a zero for wages earned during the period of lay off. This, of course, causes an injured worker to have an artificially low Average Weekly Wage (AWW), meaning a similarly reduced workers’ compensation rate.

Recently, however, the Supreme Court of Pennsylvania distinguished Reifsnyder, relaxing this strict rule. In Hostler v. Workers' Compensation Appeal Board (Miller Wagman, Inc.), the Court found that the injured worker did NOT “maintain a continuous employment relationship with Employer, as petitioner did not ‘retain[ ] significant rights/accoutrements of employment’ with Employer” during the periods he was laid off. As such, the AWW did not include the periods of layoff (thus, the AWW was not artificially reduced).

The Court distinguished the situation in Reifsnyder, where the injured worker “pursuant to (his) collective bargaining agreement, retained significant rights/accoutrements of employment, such as plant seniority, healthcare and sick leave benefits, and employer contributions to (his) retirement accounts.” In Hostler, the injured worker did not receive any benefit from his employer during the time he was laid off, and he was not assured of any recall from the layoff. The Court noted that such a finding was necessary “to accurately capture economic reality when calculating claimant’s average weekly wage,” and that this calculation “advances the humanitarian purpose of the Workers’ Compensation Act.”

May 4, 2012

PA Courts Say Crooked Nose Not Unsightly

In PA Workers’ Compensation, almost everything has a specific amount of benefit, for a specific period of time. A workers’ comp rate is determined by starting with the Average Weekly Wage (AWW) and using a precise formula. If an injured worker in PA loses a finger, toe, hand, foot, arm or leg in the work injury, he or she is entitled to a certain number of weeks of compensation (depending on which appendage is involved). An injured worker determined to be less than 50% impaired after receiving total disability benefits for 104 weeks is entitled to a maximum of 500 additional weeks of workers’ compensation benefits. These schedules regarding the amount of benefits payable to an injured worker can be found on the website of the Pennsylvania Bureau of Workers’ Compensation, in Section 306.

There is, of course, an exception to every rule. In PA, facial disfigurement is compensable by a payment of up to 275 weeks of benefits, at the discretion of the Workers’ Compensation Judge (WCJ). The disfigurement must be both permanent and “unsightly.” The Commonwealth Court of Pennsylvania recently addressed this issue in the case of Walker v. Workers’ Compensation Appeal Board (Health Consultants), where the Court decided a crooked nose was not “unsightly” and not worthy of any compensation.

In the Walker case, the injured worker fell down steps and broke her nose. The injury to the nose was accepted and she received workers’ comp benefits until she went back to work. Subsequently, she filed a Petition for Reinstatement (treated by the WCJ and the Court, correctly, as to also include a Petition to Review the Notice of Compensation Payable [to add low back to her work injury], since it was the unaccepted injury which allegedly now caused her disability. In this litigation, Claimant also sought facial disfigurement benefits for her nose, which now had small scars and was slightly crooked.

The WCJ denied the Petition for Reinstatement, finding both Claimant and her medical expert not credible (she had not complained of problems with the low back until several months after the injury). For the nose, however, the WCJ awarded 45 weeks of benefits for facial disfigurement. Significantly, before making his finding, the WCJ asked for, and received, pictures of the injured worker before the work injury, since he did not find the damage to the nose to be obvious.

On appeal the Workers’ Compensation Appeal Board (WCAB) affirmed the WCJ on the Petition to Reinstate, but reversed on the award for facial disfigurement. In viewing the injured worker themselves, the WCAB found the nose, while admittedly slightly crooked, was not “unsightly.” As such, under the PA Workers’ Compensation Act, the WCAB found no benefits awardable for the nose.

The Commonwealth Court of Pennsylvania affirmed the decision of the WCAB on both parts. In so doing, the Court noted that the law requires the disfigurement to be “unsightly,” and the fact the WCAB found the nose not “unsightly,” and the fact the WCJ needed before and after pictures to see any difference, is clear evidence the nose was not unsightly.

Considering such a determination should be subjective, I find the decision of the Court plain wrong. The WCAB admitted that the injured worker’s nose was now slightly crooked. It was of no moment to the WCAB that the injured worker considered herself, and perhaps, given the WCJ’s finding, a reasonable person would find her, less attractive than before the injury. The dictionary defines “disfigurement” as, “an appearance that has been spoiled or is misshapen.” How, then, is the damage to the injured worker not compensable? Why does anyone get a nosejob if they do not find their appearance acceptable? According to our esteemed Court, if Jessica Alba suffered a facial injury and came out looking like Rosie O’Donnell, she would not be disfigured. I suppose the Court has a logic for its decision, but if so, it is logic I cannot detect.

April 24, 2012

Pension Offset in PA Workers’ Comp Denied Without Evidence

Not very long ago, this blog expressed our disappointment with the decision rendered by the Commonwealth Court of Pennsylvania in Glaze v. Workers’ Compensation Appeal Board (City of Pittsburgh), where the Court remanded to the Workers’ Compensation Judge (WCJ) for the WCJ to find some amount of a credit for pension payments, despite the employer’s failure to present credible evidence to the WCJ initially. As we expressed in our blog entry, a party who fails to sustain its burden of proof in a PA workers’ compensation case should not prevail.

We are now happy, though a bit confused, to report what appears to be a contradictory decision by the Commonwealth Court of Pennsylvania in the case of United Airlines v. Workers’ Compensation Appeal Board (Gane). Here, the claimant suffered a severe injury described as “pain disorder, dysthemic disorder, herniated discs at C3-4 and C4-5, rotator cuff impingement on the left side with aggravation and protruding disc at C5-6.”

After the work injury, the claimant began to receive a pension from his employer, which was entirely funded by the employer. As we have previously discussed in this blog, this resulted in a credit for the entire amount of the pension the injured worker received, under Section 204(a) of the Pennsylvania Workers’ Compensation Act. Subsequently, the employer here went bankrupt and the pension was terminated by the government, and taken over by the United States Federal Pension Benefit Guarantee Corporation (PBGC).

The employer, despite no longer directly paying the pension, still desired to have a credit for the pension payments. A Petition for Review was filed and litigated before a WCJ. Both parties presented expert testimony regarding how pensions are funded and paid. The WCJ found that employer failed to prove an exact amount of credit to which they would be entitled. Moreover, the WCJ found that no credit would be appropriate anyway, since the pension plan had been terminated by the government, relieving the employer of any liability it may have had.

The Commonwealth Court of Pennsylvania disagreed with the latter finding by the WCJ. Instead, the Court stated that the only inquiry under Section 204(a) is “the extent to which the employer funded an employee’s pension, not who is liable for payment.” Thus, the termination of the pension, and taking over of the liability by PBGC, is irrelevant to whether employer still gets a credit.

Interestingly, especially after the decision in Glaze, the Court then affirmed the decision of the WCJ anyway, holding that employer is still not entitled to a credit for the pension payments, because employer failed to prove the amount of credit to which it was entitled. While we find this decision a bit difficult to reconcile with Glaze, we are delighted to see that, perhaps, a party in PA workers’ comp who fails to meet its burden of proof should really not win.

April 2, 2012

Chiropractic Treatment Not Reasonable or Necessary in PA Workers’ Comp because it Failed to Improve Condition

As long time readers of our blog know, Utilization Review is the process either party can use to address whether medical treatment for a PA work injury is reasonable or necessary. Though the Courts in Pennsylvania have made it clear that treatment can be reasonable and necessary while merely “palliative” (relieves symptoms though not curing the condition), we have seen the Commonwealth Court of Pennsylvania find treatment unreasonable and unnecessary because it did not significantly improve the condition.

This concept was again tested by the Commonwealth Court of Pennsylvania in Leca v. Workers’ Compensation Appeal Board (Philadelphia School District). Here, the injured worker hurt his low back and received chiropractic treatment for a period of years. The workers’ comp insurance carrier filed for Utilization Review. A Utilization Review Determination found the chiropractic treatment reasonable and necessary.

The workers’ compensation insurer filed a Petition for Review of Utilization Review Determination. In the litigation before a Workers’ Compensation Judge (WCJ), the insurer presented deposition testimony of the injured worker’s treating orthopedic surgeon, and its Independent Medical Examining (“Independent” being used loosely in this context) orthopedic surgeon. Both of these physicians testified the chiropractic treatment was not reasonable or necessary because, though it may have provided temporary relief, the chiropractic treatment did not improve the condition of the injured worker. No evidence from a chiropractor was offered. In response, the injured worker only offered the Utilization Review Determination (the injured worker did not even testify on his own behalf).

The WCJ granted the Petition, finding the experts presented by the workers’ comp insurance carrier credible. The chiropractic treatment was found unreasonable and unnecessary. Upon appeal, the Workers’ Compensation Appeal Board affirmed, as did the Commonwealth Court of Pennsylvania. The Court noted that the testimony of orthopedic surgeons, as opposed to a chiropractor, was perfectly acceptable, and that the WCJ had ample evidence to find the treatment at issue unreasonable and unnecessary.

While I am not certain the insurance carrier ever established the treatment was anything more than proper palliative treatment (no different than medications or injections), I am somewhat unclear why the injured worker did not present evidence regarding how the chiropractic treatment helped him. Why would the injured worker not testify regarding the benefits he derived from the treatment? Why would the chiropractor not testify, or at least submit a report, to address why he continued to provide this treatment? Not being involved in the case, I cannot say why these decisions were made, though it does make one wonder.

March 26, 2012

Petition to Review in PA Workers’ Comp Must be Timely

Previously, we discussed the case of Fitzgibbons v. Workers’ Compensation Appeal Board (City of Philadelphia). In this decision, the Commonwealth Court of Pennsylvania held that a Petition to Review, to expand a description of injury, must be filed within three years of the last payment of workers’ compensation benefits.

This issue again came before the Commonwealth Court of Pennsylvania, in Dillinger v. Workers’ Compensation Appeal Board (Port Authority of Allegheny County), and the results were similar. On November 15, 2003, the injured worker was assaulted while driving a bus. As a result, she suffered a left shoulder strain. Workers’ compensation benefits were then suspended as of February 20, 2004. On March 22, 2007, the injured worker filed a Petition to Review, alleging that she also suffered post-traumatic stress disorder (PTSD) as a result of her injury. The injured worker also filed a Petition for Reinstatement and a Claim Petition.

A Workers’ Compensation Judge (WCJ) granted the Petition to Review and dismissed the Claim Petition, as moot. The WCJ found that the PTSD should have been accepted as part of the work injury and should be listed on the Notice of Compensation Payable (NCP). Upon appeal, this was reversed by the Workers’ Compensation Appeal Board (WCAB), based upon the Fitzgibbons decision.

The Commonwealth Court of Pennsylvania affirmed the decision of the WCAB. The Petition to Review was not timely, under Fitzgibbons, and must fail. The Petition for Reinstatement, since it was based on the PTSD, rather than the left shoulder strain, also must fail. The Court did reverse the WCAB, however, as to the dismissal of the Claim Petition. The injured worker may still attempt to prevail on the Claim Petition, so the Court remanded to the WCJ to make additional findings of fact to determine whether the injured worker met her burden of proof with regard to the Claim Petition.

March 15, 2012

Pension offset in PA Workers Comp May Apply Even Without Evidence to Prove Amount

We have discussed Section 204(a), part of the 1996 amendments to the Pennsylvania Workers’ Compensation Act, previously on our blog. This Section gives the workers’ comp insurance carrier a right to a credit, or offset, on other types of benefits, including Social Security Retirement, unemployment compensation, severance and pension benefits.

The offset regarding a pension is available to an employer only “to the extent funded by the employer directly liable for the payment of compensation.” In many situations, this can be a complicated calculation. There are generally two types of pension plans – “defined contribution” and “defined benefit.” In a defined contribution plan, the employee contributes a specific percentage of his earnings to the plan, as does the employer. In those cases, calculations are generally less confusing. The problem comes more with defined benefit plans, where the employee is paid a set amount from a pool of money.

Since payments in defined benefit plans are made from a pool of money, rather than individual accounts, it is virtually impossible for an employer to identify how much it contributed to any one individual’s pension. The Courts have addressed this issue and made clear that “an employer can meet its burden of proving the extent of its contribution to a claimant’s defined-benefit pension by credible actuarial evidence; it need not identify actual contributions to the claimant’s pension.”

With all of this in mind, we turn to Glaze v. Workers’ Compensation Appeal Board (City of Pittsburgh), which is actually a consolidation of many similarly-situated cases involving firemen with a defined benefit plan. Here, the employer sought a credit against the pension being received by injured workers, which was challenged by the injured workers. Before a Workers’ Compensation Judge (WCJ), both sides presented expert testimony regarding the contributions made by the employer to the pensions of the injured workers. The WCJ found the expert offered by the injured worker more credible than the expert presented by the employer. In explaining the determination of credibility, the WCJ gave around seven reasons, though the first was the inability to identify the contribution to each specific pension by employer’s expert. Though the WCJ agreed employer was entitled to some credit, the WCJ denied the offset since the employer failed to meet its burden of proof. On appeal to the Workers’ Compensation Appeal Board (WCAB), there was a split of the WCAB Commissioners. By law, this affirmed the decision of the WCJ.

The Commonwealth Court of Pennsylvania, however, remanded back to the WCJ for additional findings. Though the Court acknowledged that the WCJ is the ultimate finder of fact, and determiner of credibility, the Court said the first basis used by WCJ was so fundamentally flawed that the WCJ should reconsider the determination of credibility with the proper state of the law in mind (that the employer need not prove the amount contributed to any specific pension). To an untrained (or even trained) eye, this would appear as if the Court is trying to reweigh the WCJ’s determination of credibility.

Moreover, the Court found that since the WCJ agreed some offset should be due, since employer must have funded some portion of the pension, the WCJ erred in granting no offset. Upon remand, the WCJ was instructed to decide on a percentage of offset, since it cannot be zero. The Court noted that in civil law, one need not show exact damages in order to prevail. What the Court appears to forget is that the Pennsylvania Workers’ Compensation Act is NOT ordinary civil law. This Act is “remedial legislation” intended to benefit the injured worker. Remember that pain and suffering, and non-economic damages, are not permitted in PA workers’ compensation.

It is a completely foreign concept to me that a party to a workers’ compensation case can fail to meet its burden of proof, and still have the Commonwealth Court of Pennsylvania tell a WCJ that this was “close enough” and the employer should get some relief. The reliability of the entire system rests with core concepts being upheld. One of those core concepts is that a party must meet its burden of proof to win. The workers’ comp insurance carrier failed to meet its burden of proof, plain and simple, and the offset should have been denied. The efforts of the Court simply undermine the reliability of the system.

March 9, 2012

Even an Application for Pension May Cause Impact to PA Workers’ Comp Benefits

Whether an injured worker in PA has “voluntarily withdrawn from the labor market” has been a frequent topic on this blog. There has been a great deal of litigation on this issue in the appellate courts over the past several years. We are seeing that the details and facts in each case really have great meaning for which way the courts may decide.

In City of Pittsburgh v. Workers’ Compensation Appeal Board (Marinack), we saw some additional clarification of the relative burdens of proof in this situation. Here, the injured worker, a firefighter, suffered a rotator cuff tear in his shoulder, an aggravation of degenerative disc disease in his lumbar spine, and anxiety and depression. The injured worker filed for a disability pension, but was ineligible because he was terminated for cause.

The workers’ comp insurance carrier filed a Petition for Suspension, alleging that the fact the injured worker filed for a disability pension meant that he was voluntarily leaving the labor market. In such a case, the workers’ comp insurance carrier would not be required to prove job availability to obtain relief. The Workers’ Compensation Judge (WCJ) agreed that Claimant had voluntarily left the labor market. Further, the WCJ found that the injured worker did not prove he was looking for work, so the WCJ granted the Suspension Petition.

On appeal, the Workers’ Compensation Appeal Board (WCAB) reversed the decision of the WCJ. The WCAB concluded that the WCJ had erred in finding that the injured worker had “retired.” The fact that the injured worker did not receive the disability pension meant that he did not “accept” the pension. Thus, since the injured worker did not retire, the burden remained on the workers’ compensation insurer to prove job availability. Since no job availability was shown, the Suspension Petition must be denied.

When the workers’ comp insurance carrier appealed to Commonwealth Court of Pennsylvania, it argued the WCAB had erred in finding that the injured worker’s attempt to collect the pension, whether successful or not, could show that the injured worker intended to leave the labor market, or, in other words, retire. Interestingly, the Court agreed with the employer, but, the result remained unchanged.

While the Court agreed the attempt to obtain a pension can be enough to trigger a withdrawal from the labor market, the pension in this case was a DISABILITY pension, as opposed to a RETIREMENT pension, and there is a vast difference in the effects of collecting each. Since this was a disability pension, the workers’ comp insurance carrier still had the burden to show the injured worker does not intend to return to work. No evidence was presented by the workers’ compensation insurance company in that regard, so the Suspension Petition still must fail. Note that when an injured worker accepts a retirement pension, there is a presumption that the injured worker has left the labor market, meaning the burden of proof shifts to the injured worker to prove that he or she is actually looking for work (or that he or she is totally disabled from all employment).

March 2, 2012

Benefits Suspended Under PA Workers’ Comp Because Injured Worker Gets Social Security Disability

On many occasions, we have explored the evolution of the Pennsylvania Workers’ Compensation Act as it pertains to whether an injured worker has “voluntarily left the labor market.” Typically, we see this situation when the injured worker has filed for a retirement pension, or given some other indicia of “retirement.” Until now, we have not seen the Pennsylvania Courts punish an injured worker for merely taking Social Security Disability benefits.

Unfortunately, that ended with Burks v. Workers’ Compensation Appeal Board (City of Pittsburgh), where the Commonwealth Court of Pennsylvania upheld the suspended of workers’ comp benefits merely because the injured worker was receiving Social Security Disability benefits.

In that case, the injured worker had both a work-related injury (knee sprain) and non-work-related conditions (many, primarily involving her hip and low back). The Court found that the injured worker was capable of light duty work with regard to the work injury, but that she was totally disabled with the addition of the non-work-related conditions. As such, the Court concluded:

“Claimant’s decision to receive Social Security Disability benefits shows that she has voluntarily withdrawn from the workforce for reasons unrelated to the work injury.”

The Court did note, in a footnote, that this decision is based on the fact that the work injury was not the basis for her receipt of Social Security Disability benefits. The Court went on to say that, if the injured worker received Social Security Disability benefits as a result of the work injury, then workers’ compensation benefits would continue.

February 23, 2012

Loss of Earnings Must be Related to Work Injury for Reinstatement in PA Workers’ Comp

Generally speaking, the goal is to return an injured worker in Pennsylvania to gainful employment. Along those lines, under the Pennsylvania Workers’ Compensation Act, when an injured worker in PA is not able to keep working, due to the effects of the work injury, workers’ comp benefits should be reinstated.

The key element to whether benefits will be reinstated is often whether the loss of earnings is truly related to the work injury. A good example of this concept came recently in the case of Verity v. Workers’ Compensation Appeal Board (The Malvern School), decided by the Commonwealth Court of Pennsylvania.

Here, Ms. Verity (Claimant) suffered a strain to her left hip and low back. After being released to modified duty, Claimant returned to work under those restrictions. Subsequent to her going back to work, Claimant had additional restrictions placed upon her by her physician, which included “no going up/down stairs.” The employer said they had nothing within those restrictions, and Claimant filed a Petition for Reinstatement.

In that litigation, Claimant testified that she had to climb three flights of stairs a day for her apartment, and that she was able to go up or down the ten steps that were required at her job, maybe four times a day. Her doctor testified that she did not mean literally no steps, the doctor just meant no steps on a repeated basis. In fact, Claimant’s doctor said she encouraged her to continue working at the job. As such, the Workers’ Compensation Judge (WCJ) denied the Reinstatement Petition, since the reason Claimant was not working was not related to the work injury (or, in other words, it was not the work injury which prevented her from working at that job). The Workers’ Compensation Appeal Board (WCAB) affirmed.

Upon appeal to the Commonwealth Court of PA, the decision was again affirmed. Claimant knew the restriction placed by the doctor was not accurate, but did nothing to fix it (indeed, when Claimant went back to the doctor again, the same restriction was placed). Claimant knew her injury did not prevent her from doing her job. Therefore, the Petition for Reinstatement was properly denied.

February 17, 2012

Social Security Retirement Offset in PA Workers’ Comp Act is Not Unconstitutional

Many changes to the Pennsylvania Workers’ Compensation Act, much to the detriment of the injured worker, took place in the sweeping 1996 amendments to the Act. One of the more substantial changes was the amendment to Section 204(a), allowing PA workers’ comp insurance carriers to enjoy an offset, or credit, for such things as severance, unemployment compensation and Social Security retirement (known as “Old Age,” though we certainly won’t use that term) benefits.

Looking specifically at Social Security retirement, Section 204(a) permits the PA workers’ compensation insurance company to take an offset equal to 50% of an injured worker’s Social Security retirement benefit. The Supreme Court of Utah found a similar provision in that State’s workers’ compensation system to be unconstitutional. With that decision in mind, attorneys representing injured workers in PA had high hopes for a similar result from the Pennsylvania Court System.

So far, unfortunately, our hopes have been dashed. The Commonwealth Court of Pennsylvania has decided, in Caputo v. Workers’ Compensation Appeal Board (Commonwealth of Pennsylvania), that the PA workers’ comp system is different than that in Utah, and the offset in Section 204(a) of the PA Workers’ Compensation Act is indeed constitutional. Hope remains the Supreme Court of Pennsylvania will review this issue, but for now the 50% offset in Section 204(a) will remain.

Note, also, that taking Social Security retirement benefits can severely damage a workers’ comp case in PA. Between this significant risk, and the 50% offset, it is advisable for an injured worker to consult with an attorney experienced in the Pennsylvania workers’ comp system before making such a critical decision.

February 9, 2012

Reinstatement of PA Workers’ Comp Benefits Proper With Change in Condition

Under PA workers’ comp, wage loss benefits are stopped (suspended) when an injured worker returns to work at no loss in wages (medical treatment continues, regardless of wage loss, however). What if the injured worker (“claimant”) voluntarily quits a job? Can he or she get reinstated to workers’ compensation benefits in PA? Well, it depends.

The Commonwealth Court of Pennsylvania faced this issue in Allen v. Workers' Compensation Appeal Board (Delaware County SPCA, Inc.). Here, on August 24, 2007, the claimant injured his shoulder at work, but then subsequently returned to work, at his pre-injury job, at no loss in wages, causing the workers’ comp benefits to be suspended. The injured worker then voluntarily quit his job on January 3, 2008, because there was a “deterioration of the relationship” with the company, and he was having increased pain in his shoulder. On January 29, 2008, the injured worker saw a doctor who found that he was not physically capable of his pre-injury job as of that date.

A Workers’ Compensation Judge (WCJ) granted the Petition for Reinstatement, as of January 29, 2008, since the injured worker proved he had a change of condition as of that date. Upon appeal, the Workers’ Compensation Appeal Board (WCAB) reversed the WCJ, finding that claimant was not entitled to a reinstatement of his workers’ comp benefits, because he had voluntarily quit his job.

The Commonwealth Court of Pennsylvania reversed the WCAB, and reinstated the decision of the WCJ, saying that once claimant proved that his condition had changed, and that he was again disabled from his job, he was again entitled to PA workers’ compensation benefits. The fact the injured worker quit the job meant he was not entitled to benefits from January 8, 2008 to January 28, 2008 (since the reason he was not working in that time was not shown to be related to the work injury). Once the injured worker proved a change in his condition, the fact that he quit was no longer relevant.

One question, left unanswered by the Court, is what happens when the injured worker is again released to return to his pre-injury position? In a normal situation, the employer/workers’ comp insurance carrier must prove that a job is available to him before a suspension of benefits would be granted. Would the fact the claimant quit the job come back to haunt him then? I guess we will have to stay tuned.

February 6, 2012

Acknowledged PA Work Injury – Claim Still Denied

Before recent changes in PA Workers’ Compensation law, an insurance carrier could “accept” a claim using a Notice of Denial (NCD). This left the status of the work injury in doubt, so, in 2011, the PA Bureau of Workers’ Compensation redesigned the NCD form to no longer allow such an action.

With the previous NCD, we had seen a Claim Petition denied, despite an acknowledged work injury. As attorneys who represent injured workers, we found this result illogical, and just plain wrong.

As if in a confirmation that an illogical result was intended, the Commonwealth Court of Pennsylvania decided the case of Zuchelli v. Workers' Compensation Appeal Board (Indiana University of Pennsylvania), again denying a Claim Petition because disability was not proven (the NCD used to “accept” the claim was done before 2011).

We hope that the change in the NCD form will remove this issue forever, and save the Courts from their own tendencies. In the meantime, we would urge the Courts to understand the difference (and there is one) between denying a Claim Petition and finding disability was not proven. It is shocking, in this day and age, that the Courts could be so blind to the value and importance of an injured worker having access to medical treatment (regardless of whether disability took place or not).

February 2, 2012

PA Workers’ Comp Settlement May Preclude Unemployment Compensation

When we settled a workers’ comp case in Pennsylvania (usually done by what is called a “Compromise & Release Agreement”), there was often a question from our client about whether he or she could then file for unemployment compensation benefits. Usually, as part of a workers’ compensation settlement, the employer/insurance carrier wants a resignation as part of the deal. Until recently, we told them the honest answer – maybe. It depended on the identity of the Unemployment Compensation Referee (UCR), the wording of the resignation and the status of the medical clearance (one must be capable of some type of employment to be eligible for unemployment compensation).

When the Commonwealth Court of Pennsylvania recently decided Lee v. Unemployment Compensation Board of Review, however, we were given a pretty specific answer – no, you cannot. Here, the injured worker gave both a resignation and a release (waiving her rights to other causes of action, including unemployment compensation benefits) as part of her workers’ compensation settlement. Following the approval of the settlement, the injured worker filed for unemployment compensation benefits.

Benefits were granted by the UCR, who found the resignation was not “voluntary,” since it was required as part of a workers’ compensation settlement. The Unemployment Compensation Board of Review reversed, finding the injured worker not eligible for unemployment compensation benefits. Upon further appeal, this was affirmed by the Commonwealth Court of Pennsylvania.

While the Court found the release to be void (one cannot waive rights to unemployment compensation benefits in Pennsylvania, or, for that matter, PA workers’ comp benefits), the Court went on to agree with the Board of Review, that the resignation was “voluntary,” meaning the injured worker not was eligible for unemployment compensation benefits.

Settlements of workers’ compensation cases in PA are still routinely performed, and are often the best course of action (depending on the circumstances in each individual case), but this decision means there is another consideration to be taken into account when an injured worker is evaluating whether to settle his or her case.

January 27, 2012

PA Workers’ Comp Evidence to be Read as a Whole

When a work injury in Pennsylvania is not obvious, the injured worker must present expert medical testimony to explain how the work duties caused the work injury. This gets even more complicated when the condition at issue is caused by a combination of the work duties and pre-existing pathology, such as in the case of a heart attack (in that situation, the injured worker (known as the “Claimant”) must prove that the work-related cause is a substantial contributing factor to the disability).

Recently, the Commonwealth Court of Pennsylvania addressed this issue in Bemis v. Workers’ Compensation Appeal Board (Perkiomen Grille Corp.). Here, the injured worker, a chef and manager, suffered a heart attack when he was moving kegs of beer and when he was lifting a heavy pot of chili. A Claim Petition was filed and the case was litigated before a Workers’ Compensation Judge (WCJ). The WCJ noted that Claimant’s medical expert said the work duties “certainly could have” and “probably” caused the heart attack. The WCJ found this opinion “equivocal” and denied the Claim Petition. The Workers’ Compensation Appeal Board (WCAB) affirmed.

Upon further appeal, however, the Commonwealth Court of Pennsylvania reversed this decision. The Court observed that the WCJ erred by taking some statements by the doctor out of context. The mere fact an expert witness says “could have” or “probably” does not render an opinion equivocal. The entire testimony must be reviewed. When this is done, said the Court, it is clear the doctor found the heart attack was related to, and caused by, the work duties. Again, in this situation, the work duties do not have to be the sole cause, only a “substantial contributing factor.” As such, the Court felt the Claim Petition should have been granted, and remanded (sent the case back) to the WCJ, to grant the Claim Petition.

January 18, 2012

Workers’ Compensation Specialty Coming to Pennsylvania

As attorneys who limit their practice to representing the injured worker in PA workers’ comp cases, we are thrilled by the recent announcement that the Supreme Court of Pennsylvania has approved the process of creating a “certified workers’ compensation attorney” in Pennsylvania (or, in other words, a workers’ compensation specialist).

We have seen the damage done to cases when an injured worker trusts a general practitioner to handle a Pennsylvania workers’ comp case. The Pennsylvania Workers’ Compensation Act is a complicated piece of legislation. As loyal readers of our blog know, this is a frequent topic of cases decided by the appellate courts in PA. Trusting a workers’ compensation case to an attorney not experienced in that area of law is akin to having an orthopedist handle your coronary artery bypass surgery. Just not a good idea.

A work-related injury can cause tremendous disruption, and loss, to both the injured worker and his and her family; we are thrilled that in the near future, that injured worker can have the confidence that he or she is selecting a “certified workers’ compensation attorney.” We, of course, look forward to becoming “certified workers’ compensation attorneys” as soon as the process for the testing and certification is completed.

January 13, 2012

Chronic Pre-Existing Condition Compensable Under PA Workers’ Comp Where Condition Worsened by Working Conditions

It is well-settled law in PA that an aggravation of a pre-existing condition is compensable under the Pennsylvania Workers’ Compensation Act. However, depending on the condition at issue, the work injury may be seen to end when the worker returns to his or her baseline condition (or, in other words, when the “aggravation” ends and the injured worker is left with the same pre-existing condition).

This concept was explored by the Commonwealth Court of Pennsylvania in City of Philadelphia v. Workers' Compensation Appeal Board (Whaley-Campbell). Here, the injured worker had a long history of allergies and respiratory symptoms for years. The air pollution at work aggravated her conditions and led to chronic conjunctivitis.

The workers’ comp insurance carrier filed a Petition for Termination, saying the work injury had resolved and that the injured worker had returned to baseline. The Workers’ Compensation Judge (WCJ) denied the Petition. Upon further appeal, the workers’ comp insurance company argued the condition is a related to the pre-existing allergies and that a Termination of workers’ comp benefits is warranted.

The Commonwealth Court of Pennsylvania affirmed the decision of the WCJ, finding that a Termination is not warranted. The Court distinguished this case from the general rule, finding that, though the injured worker had allergies and respiratory problems for years, she never had conjunctivitis before the work-related injury. Since the injured worker continued to demonstrate the effects of the conjunctivitis, she was not fully recovered.

January 3, 2012

PA Workers’ Comp Claim Dismissed “With Prejudice” Cannot be Refiled

Under the Pennsylvania Workers’ Compensation Act, and throughout legal process generally, once a matter has been decided, the parties cannot try the matter again. This is called the concept of Res Judicata.

Often, for any of a number of reasons, an attorney representing an injured worker asks a Workers’ Compensation Judge (WCJ) to mark a pending Claim Petition “withdrawn, without prejudice.” This allows the injured worker to continue his fight another day. If a Claim Petition is dismissed “with prejudice,” it cannot be refiled. Obviously, this is a critical distinction.

In Boyertown Foundry and ESIS Wilmington WC v. Workers' Compensation Appeal
Board (Martinez
), the Commonwealth Court of Pennsylvania dealt directly with this distinction. Here, the injured worker litigated a Claim Petition before a WCJ. Upon reviewing the evidence (both parties had presented evidence to the WCJ), the WCJ “denied and dismissed” the Claim Petition “with prejudice.”

The injured worker filed an appeal with the Workers' Compensation Appeal
Board (WCAB), who affirmed the decision of the WCJ denying the Claim Petition, but modified the decision so that the Claim Petition was dismissed “without prejudice.”

An appeal was then filed by the PA workers’ comp insurance carrier to the Commonwealth Court of Pennsylvania. The Court found that the WCAB had erred, and reversed that portion of the WCAB decision. The Claim Petition was properly dismissed “with prejudice,” said The Court, because the matter was decided on its merits and cannot be refiled or relitigated at a later date. The Court then went on to note that a dismissal “without prejudice” can only come where a decision on the merits has not yet been reached. In that case, a Claim Petition can again be filed at a later date.

December 21, 2011

Fatal Claim in PA Compensable Even if Treatment Not Reasonable or Necessary

One aspect of the Pennsylvania Workers’ Compensation system we (thankfully) do not often address is what is known as a “fatal claim,” where the employee is killed in the work accident. This can, of course, occur in the injury itself, or it can occur as a consequence of the original injury.

The Commonwealth Court of PA recently dealt with this latter issue in J.D. Landscaping v. Workers’ Compensation Appeal Board (Heffernan). Here, the employee injured his low back (specifically, he suffered a herniated disc at L4-5, and a lumbar strain and sprain). As a consequence of the work injury, he was taking copious amounts of medications. Unfortunately, the injured worker died as a result of “multiple drug intoxication.”

What makes this case even more interesting, is that, before the death of the injured worker, a Utilization Review (UR) determined that the ongoing use of medications was neither reasonable nor necessary. The last prescription which was filled was prescribed by a different doctor, though a member of the same practice as the doctor subject to the UR (and, remember, a UR only binds the specific doctor against whom it was filed).

The Workers’ Compensation Judge (WCJ) granted the Fatal Claim Petition, finding that the medications which led to the death of the injured worker were prescribed for the work injury, so the death was related to the work injury. As to the effect of the UR, the WCJ found that the doctor who prescribed the last medications was not the same as the doctor against whom the UR was filed, so the UR was not binding on that new doctor (despite being at the same practice). This decision was affirmed by the Workers’ Compensation Appeal Board (WCAB).

The workers’ comp insurance carrier appealed to the Commonwealth Court of PA, arguing the Fatal Claim Petition was granted in error because the medications leading to the death were found unreasonable and unnecessary by UR. The insurance company argued, though a UR is typically provider-specific, in this case it should not be, because the prescriptions were the same as those of the provider under review and the prescriptions were done with the knowledge and approval of the provider under review.

The Court concluded that the question of whether the doctor writing the last prescription was subject to the UR is irrelevant. By law, a UR may address only whether treatment is reasonable or necessary, not whether it is related to a work injury. In this case, the only question of relevance for the Fatal Claim Petition is whether the prescription was related to the work injury. This fact was not disputed. As such, said The Court, the Fatal Claim Petition was properly granted.

December 9, 2011

Surveillance Evidence Alone May Stop PA Workers’ Comp Benefits

We have previously tackled the issue of reinstating benefits under the PA Workers’ Compensation Act. Then, though, we were focusing on how an injured worker can get his or her benefits reinstated. A recent case from the Commonwealth Court of Pennsylvania addresses an even stickier issue – whether the injured worker has a burden to demonstrate continuing disability after the reinstatement. As you have probably learned by now, the answer is not black and white.

In Brian Soja v. Workers’ Compensation Appeal Board (Hillis-Carnes Engineering Associates), the Court affirmed the decision of a Workers’ Compensation Judge (WCJ), which reinstated benefits for a period of time, before ordering such benefits suspended. Here, the injured worker returned to gainful employment after a 2005 work injury, causing his benefits to be suspended. When he had a recurrence of his symptoms, again rendering him disabled, he filed a Petition for Reinstatement, as of November 1, 2006.

In the ensuing litigation before the WCJ, the injured worker testified three different times, the last of which was on April 24, 2008. At that time, he testified that he had trouble standing or walking, and he required the use of a cane. The workers’ compensation insurance carrier subsequently offered a surveillance tape of the injured worker, taken on that very day he testified on April 24, 2008. Here, the injured worker was seen limping and using a cane as he entered the hearing office. Later that day, though, he was seen walking freely, without the need for a cane, bending, twisting and otherwise acting in direct contrast to his presentation to the WCJ.

The WCJ granted the Petition for Reinstatement as of November 1, 2006, since the injured worker proved his symptoms recurred. However, the WCJ then ordered the benefits suspended as of April 24, 2008, based solely on the surveillance tape. The WCJ found the testimony of the injured worker not credible as to his condition after that date.

Claimant filed an appeal with the Workers’ Compensation Appeal Board (WCAB), arguing first that his workers’ compensation benefits could not be suspended solely on the basis of surveillance evidence, and second that once he proved a right to a reinstatement of benefits, the burden for suspension fell to the workers’ comp insurance carrier. The WCAB was unmoved by the injured worker’s arguments and affirmed the decision of the WCJ. Further appeal was then filed with the Commonwealth Court of PA.

There, the Court addressed when surveillance evidence could support a suspension of benefits:

“In sum, where an employer files a petition to reduce a claimant’s benefits from total to partial disability, the employer has the burden of proof. In that situation, a video is inadequate evidence standing alone. Rather, the video must be examined by a physician or vocational specialist who can offer evidence of what kind of jobs the claimant can do, other than his pre-injury job. Likewise, where the employer has filed a termination or suspension petition, a video will not be sufficient to satisfy the employer’s burden of proof.”

When, as here, the injured worker bears the burden of proof, the role of surveillance evidence depends on the basis for the reinstatement. Because the claimant here alleged a reinstatement based on a recurrence of his symptoms, the claimant retained the burden to prove continuing disability. Thus, the WCJ correctly, based on his findings of fact, suspended the benefits based on the surveillance.

The Court distinguished a Petition for Reinstatement based on the injured worker’s loss of a light duty job; in that case, the workers’ comp insurance carrier bears the burden and surveillance evidence alone cannot support a suspension of benefits.

December 2, 2011

PA Workers’ Comp Claim Denied for Violation of Positive Work Order

Generally speaking, the PA workers’ compensation system is a “no fault” system. It usually doesn’t matter why an employee gets hurt, as long as he or she was doing his or her job at the time. As with most rules, of course, there are exceptions. One exception to this rule is when a work injury is suffered through the violation of a positive work order.

One common thread in cases which discuss the “violation of a positive work order” defense is an incredibly stupid action on the part of an injured worker. A recent decision by the Commonwealth Court of Pennsylvania, in Habib v. Workers’ Compensation Appeal Board (John Roth Paving Pavemasters), did not deviate far from this thread.

In this case, the employee, a laborer, was awaiting a delivery of asphalt. To pass the time, he elected to see if he could break a bowling ball with a sledgehammer. The employee struck the bowling ball once, and it cracked. The foreman then told him to “knock it off.” Undaunted, the employee smashed the ball again, causing a piece of the ball to strike the employee in the eye (leading to a loss of his eye).

The injured worker filed a Claim Petition, seeking compensation for the loss of his eye, and the case was litigated before a Workers’ Compensation Judge (WCJ). The WCJ granted the Claim Petition, finding that there was no violation of a positive work order. The WCJ found the injured worker was merely careless, and that the words from the foreman did not come sufficiently in advance to rise to the level of a positive work order.

The Workers’ Compensation Appeal Board (WCAB) reversed this decision on appeal, finding that the communication from the foreman was sufficient under the Pennsylvania Workers’ Compensation Act to become a positive work order. The decision of the WCAB was affirmed by the Commonwealth Court of Pennsylvania.

While the WCJ is indeed the ultimate finder of fact, appellate courts are able to use those findings as they see fit. The question of whether an injury was suffered in the scope and course of employment is a question of law, fully reviewable on appeal.

The Court noted that there are three elements to finding a violation of a positive work order, and all three are present in this case. First, the injury must be caused by the violation of the work order (striking the ball caused the shard to go into the injured worker’s eye). Second, the employee must know about the work order (the injured worker was specifically told to “knock it off”). Lastly, the order must relate to an activity not connected with the employee’s work duties (here the injured worker’s job was not to strike a bowling ball with a sledge hammer). Since the workers’ comp insurance carrier prevailed on all three elements of this defense, the injured worker is precluded from receiving benefits for the injury.

November 23, 2011

Workers’ Comp Insurer in PA Cannot Prove Immigration Status by Injured Worker’s Refusal to Answer

How the Pennsylvania workers’ compensation system handles undocumented workers is a frequently misunderstood topic, which we have previous addressed. We mentioned that undocumented workers are entitled to workers’ compensation benefits as a general rule, thanks to the Pennsylvania Supreme Court’s decision in Reinforced Earth Co. v. Workers’ Compensation Appeal Board (Astudillo).

This result was intended to defeat the tremendous incentive for employers to hire illegal immigrants. If such workers were not eligible for PA workers’ comp benefits, an employer could simply discard the worker when he or she was injured. Employers in PA, as well as throughout our Country, are already required to ascertain a potential employee is eligible to work in the United States. Sadly, employers regularly disregard such Federal laws, apparently without any official retribution.

On the other hand, the PA Supreme Court also recognized that the immigration status of an injured worker is relevant to an injured worker’s employment status. Therefore, an undocumented worker is entitled to PA workers’ comp benefits as long as the injured worker is totally disabled. Once the injured worker is released to any type of work, however, the reason the injured worker is not employed is the immigration status. As such, once an undocumented worker is released back to any type of gainful employment, a Pennsylvania workers’ compensation insurance carrier can obtain a suspension of wage loss benefits (medical benefits do continue without regard to immigration status).

How the PA workers’ comp insurer proves that a worker is undocumented or illegal, and not eligible for employment in Pennsylvania (or in the United States as a whole), was recently addressed by the Commonwealth Court of Pennsylvania in Kennett Square Specialties v. Workers’ Compensation Appeal Board (Cruz).

In this case, the worker suffered a back injury, alleged to be a herniated disc with lumbar radiculopathy, while performing his job and subsequently filed a Claim Petition. During the litigation before the Workers’ Compensation Judge (WCJ), the injured worker was asked whether he was a citizen and whether he was an undocumented worker; he refused to answer either question, invoking his privilege against self-incrimination under the Fifth Amendment to the United States Constitution. Both the injured worker, and the workers’ comp insurance carrier submitted medical testimony that the injured worker was not physically capable of performing his pre-injury job, but that he was capable of modified duty work.

The WCJ granted the Claim Petition, but found that wage loss benefits were suspended on the date of the injury, because the injured worker was an undocumented alien worker. The WCJ arrived at this conclusion by taking an “adverse inference” from the injured worker’s refusal to answer questions regarding his immigration status.

Upon appeal, the Workers’ Compensation Appeal Board (WCAB) reversed the suspension of benefits. The WCAB ruled that an adverse inference alone was not enough to prove that the injured worker was an undocumented alien. This was affirmed by the Commonwealth Court of Pennsylvania. Since the burden on whether the benefits should be suspended rested with the workers’ comp insurance carrier, the suspension was not warranted. That the WCJ drew an adverse inference was correct, said the Court, but the adverse inference alone could not prove that the injured worker was an undocumented alien.

As attorneys who represent injured workers in PA, we have been hearing a great deal of griping from attorneys for the insurance carriers about this decision. How can they prove an injured worker is an undocumented alien, they complain. To us, the answer is simple and ironic – the United States Government created a process for employers to ascertain a prospective employee’s immigration status several years ago. If employers simply abide by already existing Federal law, they will not “accidentally” hire an undocumented alien, and this will never be an issue. We greet these workers’ comp insurance carrier complaints with amusement, since the problem stems solely from the employers’ own illegal actions.

November 17, 2011

Workers’ Comp Judge in PA Can Award Penalties When Outstanding Medical Bills are Primary Evidence

When a workers’ compensation insurance carrier in Pennsylvania does not agree with the medical treatment being received by an injured worker, there are steps the carrier can take. The most common is “Utilization Review,” which challenges the reasonableness and necessity of medical treatment. The carrier can also file a Petition to Review Medical Treatment, if the treatment is believed to be unrelated to the work injury. While the workers’ comp insurance company has the further option of simply ignoring the medical bills, this can lead to an undesirable result for the insurance carrier.

Recently, the Commonwealth Court of Pennsylvania issued a decision in the matter of CVA, Inc. and State Workers’ Insurance Fund v. Workers’ Compensation Appeal Board (Riley), where the insurance carrier took that last option and just ignored the bills it did not like. Thankfully for injured workers in PA, the decision did not go well for the insurance carrier.

This case involved a worker who injured his left knee, and received therapeutic magnetic resonance (TMR) treatment. Bills were sent to the workers’ comp insurance adjuster, who denied the bills, saying either that the documentation did not support the charges, the documentation did not support the billing code, or the treatment was unrelated to the work injury. The injured worker then filed a Petition for Penalties.

Before the Workers’ Compensation Judge (WCJ), the injured worker submitted the outstanding bills (on what is called HCFA forms, the usual billing forms) and medical records to support the treatment. The workers’ comp insurance carrier submitted no evidence at all. The WCJ granted the Petition for Penalties.

The primary argument raised by the workers’ comp insurance carrier was that the injured worker had a greater burden to prove a violation of the Pennsylvania Workers’ Compensation Act, a requirement to assess a Penalty. Initially, the WCJ overruled the hearsay objection placed to the injured worker’s evidence, finding depositions of witnesses were not necessary. The workers’ comp insurance carrier then termed TMR a “novel” medical treatment, akin to “shaman oriented drivel.” No doubt the cost, at about $3,000.00 per treatment, played a role in this response (the outstanding bill at issue was just over $140,000.00). The WCJ found that the injured worker had no burden to prove the treatment at issue was “generally accepted” in the medical community.

The Commonwealth Court of Pennsylvania was no more sympathetic to the workers’ comp insurance carrier’s complaints. The Court observed that the insurance carrier could have initiated Utilization Review, if it questioned the reasonableness or necessity, or filed a Petition to Review Medical Treatment, if it disputed the relatedness. Whether treatment is “generally accepted” in the medical community goes to whether the treatment is reasonable or necessary, so that can only be addressed through Utilization Review (in other words, a WCJ lacks jurisdiction to even address whether treatment is reasonable or necessary). In the context of a Petition for Penalties, the Court found, the question was simply whether the payment of the bills was denied. The evidence submitted by the injured worker, showing the bills were for treatment to the left knee and were denied by the insurance carrier, was sufficient to establish the Petition for Penalties.

November 10, 2011

Taking Pension, Not Looking for Work, Leads to “Retirement” in PA Workers’ Comp

Once again, we are reporting on the Pennsylvania Court System addressing the issue of retirement, and voluntary withdrawal from the labor market, in the context of a PA workers’ compensation case.

In Department of Public Welfare/Norristown State Hospital v.Workers’ Compensation Appeal Board (Roberts), the Commonwealth Court of Pennsylvania reversed the decision of the Workers’ Compensation Judge (WCJ), which had been affirmed by the Workers’ Compensation Appeal Board (WCAB), and ordered that the injured worker’s benefits be suspended because he had retired and voluntarily withdrew from the labor market.

The claimant in this case hurt his neck and back. After his injury, the injured worker took a retirement pension, which, as previously discussed here, may or may not be indicative of retirement. The injured worker also filed for what the Court called a “Social Security Disability Pension,” though I am not sure what that means (Social Security Retirement, akin to pension, is, of course, different than Social Security Disability). In his testimony before the WCJ, the injured worker said he did not feel physically capable of working and has not looked for work. The doctor testifying for the insurance carrier (the Independent Medical Examiner, IME, who typically is somewhat less than independent) felt the injured worker was capable of sedentary duty work.

The WCJ found the testimony of the IME credible, but denied the Suspension Petition, finding that the workers’ comp insurance carrier failed to prove its case. This was affirmed by the WCAB.

Upon further appeal, the Commonwealth Court of Pennsylvania found that the Suspension should have been granted. Because the injured worker took his retirement pension, filed for a “Social Security Disability Pension,” and did not look for any work, the injured worker had, in fact, retired and voluntarily removed himself from the labor market. Further, since the WCJ found the IME credible (that the injured worker was capable of sedentary duty work), and since the injured worker testified that he had not looked for any work, the Petition for Suspension should have been granted. On these facts, said The Court, there is no requirement that the workers’ comp insurance carrier prove that work was available to the injured worker.

November 2, 2011

Unemployment Compensation Benefits Not Includable in Average Weekly Wage for PA Workers’ Compensation

The calculation of the Average Weekly Wage (AWW) under the Pennsylvania Workers’ Compensation Act has been explained previously on this blog. Generally, assuming the injured worker had been working for his or her employer for more than a year before the work injury, the AWW is calculated by taking the average earnings of the injured worker for the highest three quarters in the year immediately before the injury.

Occasionally, we have a question regarding whether the injured worker has been “employed” for more than a year before the injury, perhaps due to layoffs. The Supreme Court of Pennsylvania Courts told us in 2005, in Reifsnyder v. Workers’ Compensation Appeal Board (Dana Corp), that despite periods of layoff, the term of “employment” continued. In that matter, Mr. Reifsnyder was considered to have zero earnings for the weeks he was laid off, for the purposes of calculating his AWW.

Also in 2005, the Supreme Court of Pennsylvania told us, in Colpetzer v. Workers’ Compensation Appeal Board (Standard Steel), that when an injured worker is disabled by a work injury in the one year period prior to another work injury, the AWW for the subsequent injury should include the AWW from the previous injury for any periods the worker was disabled by the previous injury.

One area left unexplored, until now, was whether the receipt of unemployment compensation benefits, received in the year prior to a work injury, is includable in the AWW. To the surprise, and great disappointment, of injured workers in PA, and the attorneys representing injured workers in PA, The Commonwealth Court of Pennsylvania has found that unemployment compensation benefits are not to be included in the AWW when received in the year before a work injury.

In Lenzi v Workers' Compensation Appeal Board (Victor Paving), the Court found that the Pennsylvania Workers’ Compensation Act does not provide for inclusion of unemployment compensation benefits in the calculation of the AWW, so they cannot be considered.

It is difficult to reconcile these cases logically. The injured worker maintained his employment throughout the period of the year before the injury, under Reifsnyder. However, here, the injured worker received unemployment compensation benefits in lieu of working for the weeks in which he was laid off. The Lenzi case concludes that the injured worker gets credit for zero earnings for the weeks he was laid off, despite the fact that he received the unemployment compensation benefits for those weeks. Indeed, it is difficult to understand how the receipt of workers’ compensation benefits, in Colpetzer, is different, fundamentally, than the receipt of unemployment compensation benefits.

October 25, 2011

Petition to Terminate in PA Workers’ Comp Requires Unequivocal Testimony That Injured Worker Fully Recovered

The most damaging petition a workers’ compensation insurance carrier can file against an injured worker in Pennsylvania is a Petition to Terminate. If granted, a Petition to Terminate ends the injured worker’s rights to all PA workers’ compensation benefits for his or her injury, whether wage loss replacement (known as “indemnity”) or medical.

Because the consequences of a Petition to Terminate are so great, the standard for a Workers’ Compensation Judge (WCJ) to grant such a petition is supposed to be high. Specifically, the workers’ comp insurance company must prove that the work-related injury has fully resolved.

Though a doctor need not utter any magic words to show an injured worker has fully recovered from his or her injury, the opinion must be clear and unequivocal. Merely being released back to unrestricted work, by itself, is not proof the work injury has fully resolved (this does not even entitle the insurance carrier to a Suspension, let alone a Termination).

In Richard Miller v. Workers’ Compensation Appeal Board (Peoplease Corp), the Commonwealth Court of Pennsylvania recently addressed exactly what was required to support a Termination of workers’ comp benefits in PA. Here, the injured worker suffered a herniated disc in his cervical spine which caused radiculopathy (when the disc presses on the nerve, causing symptoms down an extremity). As a result of this injury, an orthopedic surgeon operated on the injured worker’s neck, to relieve the pressure on the nerve.

When the orthopedic surgeon released the injured worker back to unrestricted duty, and said he was all better, the workers’ comp insurance carrier filed a Petition to Terminate. The WCJ found the orthopedic surgeon credible and granted the Petition to Terminate. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

The Commonwealth Court of Pennsylvania, however, reversed that decision. The Court found the opinions of the orthopedic surgeon to be less than unequivocal, and unable to support a finding that the work injury was fully resolved. The orthopedic surgeon stated that the pain was “largely resolved,” that it was “hard to say” if there was any permanent damage to the spinal cord, that the surgery was a success because the injured worker did not “decline in function,” and that the most recent MRI did not show any “significant pressure” on the spinal cord. The Court found this testimony equivocal as to whether the injured worker fully recovered from his work injury.

While the position taken by the Commonwealth Court of Pennsylvania is both refreshing and encouraging to injured workers, and their attorneys, across PA, one should not lose sight of the fact that in this case the primary witness for the workers’ comp insurance carrier was the injured worker’s own orthopedic surgeon. It would appear the Hippocratic Oath, in which doctors swear to do no harm or injustice to their patients, has limited application to the legal side of a patient’s situation.

October 19, 2011

IRE Valid in PA Workers’ Comp Even if Condition is Later Objectively Worse

Impairment Rating Evaluations (IREs), under the Pennsylvania Workers’ Compensation Act, have been discussed in this blog before. Basically, the IRE process enables the workers’ comp insurance carrier to switch an injured workers’ disability status to partial if there is a whole body impairment of less than 50% (a ridiculously high standard). [This does not impact the amount of the benefits being received or the access the medical treatment for the work injury].

Recently, the Commonwealth Court of Pennsylvania faced the question of whether an IRE determination is valid if it provides for no degree of impairment for a diagnosis the injured worker still has, but is at that time asymptomatic (and, whether the IRE is then later void, because that very same diagnosis is again causing symptoms).

In this decision, Westmoreland Regional Hospital v. Workers' Compensation Appeal Board (Pickford), the injured worker was left out in the cold by the Court. The Court concluded that the IRE only has to consider the injured worker’s condition at the moment of the IRE. Since the injured worker had no objective evidence of her brachial plexopathy or Complex Regional Pain Syndrome (CRPS, formerly known as Reflex Sympathetic Dystrophy or RSD) at the time of the IRE, zero impairment for those conditions was correct. The Court found largely irrelevant that within several months of the IRE, the conditions were again revealing objective evidence of impairment.

Instead, the Court noted that the injured worker could simply file a Petition for Reinstatement, as long as there was evidence that the whole body impairment was greater than 50%. Since this standard is so ridiculously high, though, few injured workers are able to meet this standard. Indeed, since a “whole body impairment” has nothing to do with “disability,” it would seem this entire scheme is flawed. This is just further proof of how the injured worker is viewed in the State of Pennsylvania.

October 3, 2011

PA Workers’ Comp Insurer Only Responsible for Part of Medical Expenses

Under the Pennsylvania Workers’ Compensation Act, the workers’ comp insurance carrier is responsible for all reasonable and necessary medical treatment which is related to the work injury. In very rare circumstances, the cost of wage loss (“indemnity”) benefits and medical expenses can be allocated between more than one insurance carrier. Typically, this would be seen when the injured worker is disabled by more than a single injury, involving multiple insurance companies.

Hearing loss cases, however, are treated differently under the PA Workers’ Compensation Act. When someone losses their hearing due to excessive noise in the workplace, the Act specifically states that, “An employer shall be liable only for the hearing impairment caused by such employer.” (Section 306(c)(8)(iv)).

Recently, the Commonwealth Court of Pennsylvania decided the matter of James McClure, Sr. v. Workers’ Compensation Appeal Board (Cerro Fabricated Products). Here, the injured worker had a documented hearing loss of 18.12% in 1997, while employed by a different employer. He became employed by Cerro in 2000. No Claim Petition was filed until 2004, when he had a hearing loss of 24.69%. The prior employer was dismissed, since more than three years passed since the last date Mr. McClure was exposed to excessive noise in the employ of the previous employer (Some injuries have a “discovery rule,” where the “statute of limitations” can be extended, where the injured worker has no reason to know or suspect the injury; there is no such rule in hearing loss under the Pennsylvania Workers’ Compensation Act).

The Workers’ Compensation Judge (WCJ) granted the Claim Petition against Cerro, but ruled that they were only responsible for 6.57% of the hearing loss (the difference between the loss shown before Mr. McClure worked for Cerro and the current hearing loss). Cerro was found responsible for all reasonable and necessary medical treatment related to the hearing loss. The Workers’ Compensation Appeal Board (WCAB) affirmed the apportionment of the hearing loss, but also found the medical expenses should be similarly proportional. Specifically, Cerro should only be responsible for 26.6% of the medical expenses (the same percentage of their share of the hearing loss relative to the total hearing loss).

What makes this unique, of course, is without the other employer in the case, the injured worker was then personally responsible for 73.4% of the cost of treatment related to a work injury. This would be a very unusual result, one that seems far too harsh to ever occur in the PA workers’ comp system.

The Commonwealth Court of Pennsylvania affirmed the decision of the WCAB. The Pennsylvania Workers’ Compensation Act specifically limits liability in hearing loss cases to the hearing impairment caused by noise exposure of that employer. The Court found that this applies not only to indemnity benefits, but also to medical expenses. It was the fault of Mr. McClure, the Court noted, that a timely claim was not filed against the previous employer (and had that been done, the Court said, that employer would have been responsible for the remainder of the medical expenses).

Since the Act does not specify whether this provision was intended to apply to both indemnity and medical benefits, it seems a rather harsh result for the Court to find as it did. It does, however, serve as a reminder for every injured worker to seek legal advice from an experienced PA workers’ compensation attorney at the first thought that there may have been any type of injury. The consequences for doing nothing, as Mr. McClure learned, can be very grave.

September 21, 2011

Armed Robbery Abnormal? Not Under PA Workers’ Comp!

As followers of our blog are aware, we filed a workers’ compensation case on behalf of a PA liquor store clerk who was the victim of an armed robbery (and suffered post-traumatic stress disorder (PTSD) as a result). We were successful before the Workers’ Compensation Judge (WCJ), and the matter is currently pending before the Workers’ Compensation Appeal Board (WCAB). Though we, of course, follow all PA court decisions in the workers’ comp area, we have a particular interest in those dealing with this issue.

Yesterday, the Commonwealth Court of Pennsylvania issued a decision in the matter of PA Liquor Control Board v. Workers’ Compensation Appeal Board (Kochanowicz). In what can only be described as a staggeringly repulsive decision, the Court reversed both the WCJ and WCAB, who both found that the claimant in that case suffered PTSD as a result of an armed robbery, and that the armed robbery was an “abnormal working condition.” Both the injured worker’s treating doctor, and the Independent Medical Examiner (IME)[Who often is anything but “independent”], found that the injured worker suffered PTSD as a result of the armed robbery.

In its infinite wisdom, the Court found that armed robberies at liquor stores in Pennsylvania are common; perhaps, if we are understanding their logic correctly, an armed robbery at a liquor store these days is akin to taking out the trash. Just another part of a clerk’s daily routine.

Examining this conclusion logically is appalling. One State agency, the Court system, is noting that another State agency (PA Liquor Control Board) is so incompetent that entering a liquor store in Pennsylvania is essentially risking one’s life. It would seem the signs in front of the PA liquor stores should immediately be changed to read, “CAUTION – IT IS PERFECTLY NORMAL FOR ARMED BANDITS TO ENTER THIS STORE AT ALL TIMES.” Moreover, under this result, the injured worker is disabled from work, a fact both medical experts agreed upon, and he receives no income whatsoever. How is that remotely fair?

Of course, since we do live in a civilized society, and the old west remains in the past, there was a minority voice of reason on the Court. Three of the Judges on the Court dissented, and made arguments that made perfect sense. We are hopeful that a request for appeal (known as allocator) will be made to the Supreme Court of Pennsylvania, and that this grave injustice will be rectified by the Supreme Court. We also encourage the public to contact their Pennsylvania elected officials, Representatives and Senators, to have the PA Workers’ Compensation Act changed, so people who are injured while working are properly protected in this circumstance. Just for common decency, this must be fixed.

September 9, 2011

Degenerative Condition Can Be Work Injury in PA Workers’ Comp

Often, injured workers in Pennsylvania have their claims denied by the workers’ comp insurance carrier because their disability is said to be related to a “degenerative” condition, rather than a traumatic one. In fact, almost inevitably, if the word “degenerative” appears in the medical records, the workers’ compensation claim will be denied by the workers’ comp insurance company, forcing the injured worker to litigate his or her claim.

Yet, these degenerative conditions are ones that allowed the injured worker to do his or her job, frequently even without difficulty, until the work injury. The fact that the work injury makes the degenerative changes disabling is what truly matters. In that situation, the injured worker is entitled to PA workers’ compensation benefits.

Recently, the Commonwealth Court of Pennsylvania confirmed this premise in Green v. Workers’ Compensation Appeal Board (US Airways). The case began when Ms. Green was injured at work in 1993. A Notice of Compensation Payable (NCP) was issued, accepting the injury as a meniscal tear in the right knee. The description of injury was later amended to include left tibial plateau cartilage damage and lateral femoral condyle defect. Workers’ compensation benefits were suspended in 2003.

In 2008, Ms. Green filed a Petition for Reinstatement, alleging that the work injury again caused her to be disabled. A deposition was taken of her medical expert, who essentially testified that the work injury triggered degenerative changes, which progressively made the condition worse. The workers’ compensation insurance carrier did not put on any medical evidence. This Petition was denied by the Workers’ Compensation Judge (WCJ), who found that Ms. Green failed to prove her case. Specifically, the WCJ found Ms. Green’s medical expert credible, but not persuasive. The only reason given by the WCJ for not accepting the testimony of her medical expert is that the doctor “characterized Claimant’s injuries as degenerative in nature.”

On appeal, the Workers’ Compensation Appeal Board (WCAB) affirmed this decision. The WCAB noted that the WCJ did not find the testimony of Ms. Green’s medical expert to be credible.

The Commonwealth Court of PA, however, vacated the decision and remanded to the WCJ for further findings. Initially, the Court observed that the WCAB made an error in saying the WCJ found the medical expert’s opinion not credible – the WCJ actually found the opinion credible, but not persuasive and there is a difference. Further, the WCJ erred in finding the opinion unpersuasive, since the opinion of the medical expert clearly was that the work injury started the chain of events, leading to the disability. Thus, any finding by the WCJ, based on the medical testimony, that the disability was related solely to degenerative changes, is not supported by the evidence. In analyzing the case, the Court made clear to observe that just because a condition is degenerative does not mean the cause of the disability is the same; in fact, often, as here, the work injury “aggravates” or “accelerates” the degenerative condition, making that condition disabling.

This case demonstrates that injured workers must not simply accept a denial from a workers’ comp insurance company, simply because degenerative changes have been mentioned. There still very well may be a valid PA workers’ compensation case, and the injured worker may still be entitled to workers’ comp benefits.

September 1, 2011

Unreasonable Contest in PA Workers’ Comp Not Found Even Though No Basis to Contest Claim

Under the Pennsylvania Workers’ Compensation Act, Section 440(a), “where a claimant succeeds in a litigated case reasonable counsel fees are awarded against the employer, as a cost, unless the employer meets its burden of establishing facts sufficient to prove a reasonable basis for the contest.” The Act, as you can see, clearly states that this is to be the rule, not the exception. The employer/insurance carrier has the burden to prove that there was a reasonable contest. One would read that language and believe unreasonable contest counsel fees are often awarded. One would be dead wrong.

The reason why unreasonable contest counsel fees are rarely found these days is reflected in a recent decision by the Commonwealth Court of Pennsylvania, Grady v. Workers’ Compensation Appeal Board (Lutz t/a Top of the Line Roofing). Here, a roofer suffered a T12 burst fracture resulting in paraplegia of both lower extremities and depression when he fell from a rooftop.

Ultimately, a Claim Petition was filed against the Employer and the Uninsured Employers’ Guaranty Fund (UEGF). Initially, the parties asked the Workers’ Compensation Judge (WCJ) to “bifurcate” the case, to decide whether the injured worker was actually an employee (as opposed to an independent contractor). This lets the parties get past a threshold issue, before litigating the remainder of a case.

The WCJ issued an “interlocutory decision” (a decision before a final decision), finding the injured worker was an employee, on July 9, 2008. The Employer and the UEGF did nothing, and offered no defense to the Claim Petition. A final decision was rendered by the WCJ on January 14, 2009, granting the Claim Petition and awarding unreasonable contest attorneys fees, since there was no reasonable basis to deny the claim after the interlocutory decision

Though the decision granting the Claim Petition was affirmed by the Workers’ Compensation Appeal Board (WCAB), the aspect awarding unreasonable contest attorneys fees was reversed. Upon further appeal, the Commonwealth Court of Pennsylvania agreed with the WCAB.

The Commonwealth Court of PA found that the Employer’s failure to pay benefits may be the subject of a Penalty Petition, for a violation of the PA Workers’ Compensation Act, but that such a failure did not create an unreasonable contest. The Court chastised the WCJ for confusing unreasonable contest with a violation of the Act. (Note that unreasonable contest fees, and penalties, cannot be assessed against the UEGF by law, though they probably can still be assessed against the employer – the Court did not reach that issue).

With all due respect, in my view, the WCJ was entirely correct and it is the Commonwealth Court of PA who confused unreasonable contest with a violation of the Act. The Employer/UEGF had no duty to pay benefits based only on the interlocutory order; payment of benefits would have had to come by the issuance of a Notice of Compensation Payable (NCP) or Stipulation. Since there was no legal duty to commence benefits, there can be no violation of the Act. Meanwhile, the continued denial of the Claim Petition, without reason or basis can truly be seen as nothing other than unreasonable. Indeed, by condoning this behavior, the Commonwealth Court of Pennsylvania is allowing workers’ comp insurance carriers across PA to deny Claim Petitions at will, and engage in the all-too-common practice of starving out injured workers (forcing injured workers to return to work while still disabled, or to accept a minimal settlement to feed a family).

August 18, 2011

Reinstatement of Workers’ Comp Benefits in PA May Require Change in Condition

Once workers’ compensation benefits are suspended in Pennsylvania, for example when an injured worker goes back some type of gainful employment, the general rule is that workers’ comp benefits can be reinstated by simply proving his or her earning power is again adversely affected by the injury, and that the new disability is related to the original injury. As a general rule, the injured worker need not demonstrate that there has been a change in his or her condition.

This gets a bit more complicated when there is another condition impacting the employability of an injured worker. For instance, take the matter of Upper Darby Township v. Workers’ Compensation Appeal Board (Nicastro), decided by the Commonwealth Court of PA. Here, the claimant injured his low back at work in 2002 dumping a can into the garbage truck. A Notice of Temporary Compensation Payable (TNCP) was issued, accepting a low back strain. The TNCP subsequently converted to a regular Notice of Compensation Payable (NCP).

The claimant returned to his regular duties in March, 2004, and workers’ comp benefits were suspended. On June 8, 2004, claimant again injured his low back lifting a trash can. A Petition was filed, but before there could be a decision by a Workers’ Compensation Judge (WCJ), the parties resolved the case by Stipulation. Specifically, in the Stipulation the parties agreed that claimant was disabled by the work injury from June 8, 2004 until October 7, 2004, that claimant was able to go back to his regular job as of October 7, 2004 and that claimant left the employ of the company in December, 2004, because of “injuries unrelated to his back.”

In January, 2008, claimant filed a Petition for Reinstatement, contending that his work injury was again adversely affecting his ability to work. Claimant testified before the WCJ that he continued to work at his regular duty job until December 5, 2004, when he was terminated for excessive absenteeism. Since that time, Claimant testified that he felt capable of performing his regular job. There were no subsequent injuries or incidents that changed his condition since December, 2004.

Claimant presented the medical opinion of the doctor who began treating him on November 1, 2006. The doctor testified that claimant was not capable of performing his pre-injury job, and that this opinion was based on the fact that claimant tried to go back to his regular job and failed.

The WCJ found claimant and his doctor credible and granted the Reinstatement Petition. To avoid a conflict with the Stipulation, and to attempt to make the testimony of the medical expert consistent, the WCJ granted the Reinstatement as of November 1, 2006, the date the medical expert first saw claimant. This decision was affirmed by the Workers’ Compensation Appeal Board (WCAB).

Upon further appeal to the Commonwealth Court of PA, however, this decision was reversed. Since the Stipulation stated that claimant was not able to work due to some (unstated) condition unrelated to the work injury, he faced a different burden for a Reinstatement to be successful. When there is both a work injury, and a non-work injury, present, the Court found, “The claimant must show that the non-work injury is no longer disabling and that the work injury is now causing the loss of earning power.” This requires a showing that there has been a change in the condition.

The evidence found credible by the WCJ, said the Court, contradicts the previous Stipulation. This makes the medical opinion incompetent, which cannot then successfully support a reinstatement of benefits. First, the Court observed that the opinion of the medical expert, that claimant cannot do his regular job, is directly contradicted by the testimony of the claimant. Second, the opinion of the medical expert was based on the fact that claimant tried to go back to the regular duties and could not do them; this conclusion is inconsistent with the facts stated in the Stipulation. Essentially, since the claimant failed to prove that there was a change in condition, or circumstances, after the Stipulation was approved means the Reinstatement Petition must fail.

August 12, 2011

Heart Attack from Stress at Work a Claim Under PA Workers’ Comp

Under the Pennsylvania Workers’ Compensation Act, mental injuries caused by a psychic, or mental, incident, require an injured worker to prove that the psychic, or mental, onset was an “abnormal working condition.” We have discussed psychological injuries under PA workers’ comp previously. We call these types of cases “mental/mental” cases.

But, what about a mental, or emotional, onset that leads to a physical injury (what we call a “mental/physical” case)? Back in 1981, the Supreme Court of Pennsylvania decided Krawchuk v. Philadelphia Electric Company, wherein the Court granted workers’ comp benefits to an employee who suffered a heart attack at home, after having a great deal of stress at work. This was followed, however, by the Court’s decision in Davis v. Workmen’s Compensation Appeal Board (Swarthmore Borough) in 2000, finding that abnormal working conditions were required in a case with an emotional or mental onset. Finally, the Court clarified things in 2005 in the case of Pankyo v. Worker’s Compensation Appeal Board (U.S. Airways) (Pankyo).

In the Pankyo case, the Court found that the holding in Davis was limited. Specifically, the Court noted, “given the facts in Davis, that case only stands for the proposition that where a claimant suffers a psychic injury with attendant physical symptoms, the claimant must meet the abnormal working relations test.” On the other hand, where the injury itself is physical (again, such as a heart attack), the “abnormal working conditions” requirement does not apply (even though the onset was a mental incident).

This area was addressed recently by the Commonwealth Court of Pennsylvania in Janet Little, dependent of David Little, Deceased v. Workers’ Compensation Appeal Board (B&L Ford/Chevrolet). Here, the Workers’ Compensation Judge (WCJ) applied the “abnormal working conditions” test when the claimant suffered a fatal heart attack two days after he was notified he was being terminated from his job (a few months after claimant suffered a physical work injury). As such, the WCJ denied the Fatal Claim Petition.

While the Commonwealth Court of PA did agree the WCJ erred in using the “abnormal working conditions” test, and that abnormal working conditions were not required to be shown in this situation, the Court still affirmed the decision of the WCJ. An injured worker in PA must prove the injury was suffered in the “scope and course” of his or her employment; here, the injured worker was being terminated from employment at the time of the incident. The Court found this unrelated to his work duties, and agreed with the WCJ that the Fatal Claim Petition was correctly denied.

August 2, 2011

Notice Given by Injured Worker in PA Need Not be Specific for Award of PA Workers’ Compensation Benefits

Under Section 312 of the Pennsylvania Workers’ Compensation Act, an injured worker must provide notice to his or her employer that he or she “received an injury, described in ordinary language, in the course of his employment on or about a specified time, at or near a place specified.” This notice, under Section 311, must be given within 120 days of the injury, or the claim may be precluded. In reality, giving notice to an employer may not be so simple.

Take, for example, the facts in Gentex Corp. v. Workers’ Compensation Appeal Board (Morack), a decision recently rendered by the Supreme Court of Pennsylvania. The injured worker toiled on an assembly line for many years, repetitively using her hands. Eventually, she began to have pain and swelling in her hands, and her fingers would become “stuck.”

Finally, on January 17, 2005, Ms. Morack told her boss that her hands were hurting so bad, she did not know what to do. The injured worker saw a doctor that same day and got a note keeping her out of work. According to the company policy, Ms. Morack called her employer every day for the first five days she was out, advising the employer each day that she could not work because of the swelling in her hands. She did not specifically tell the employer that the swelling was from her work duties, because she was not sure what caused the problem. A short-term disability application was made, indicating the condition was the result of “sickness” rather than “injury,” since, at that time, Ms. Morack believed her condition was related to pre-existing fibromyalgia, not her work duties.

Eventually, as she was being treated for her condition, Claimant was told by her doctor that she had bilateral carpal tunnel syndrome, flexor tendonitis in the left thumb and left fourth finger, triggering in the left index finger, a right wrist cartilage tear, and right-sided DeQuervain’s tendonitis. The doctor told Ms. Morack that these problems were not related to the fibromyalgia, but were caused by the repetitive work duties. Unable to reach her employer by telephone, Ms. Morack left several messages stating that she had “work-related problems.” The employer, allegedly, was not aware of a workers’ compensation claim until a Claim Petition was filed in October, 2006.

A Workers’ Compensation Judge (WCJ) found Claimant and her doctor credible and granted the Claim Petition. Specifically to the issue of notice, the WCJ found that she provided prompt notice when her doctor informed her of the problem being related to the work activities. The combination of what she told her supervisor on January 17, 2005, the short-term disability application, and the subsequent telephone messages were sufficient to provide notice under Section 312. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

The Commonwealth Court of Pennsylvania reversed the WCJ, however, finding that while the notice was timely under Section 311, it was not sufficient under Section 312. The short-term disability application indicated the problem was not work-related. Further, the voicemail message that Claimant had “work-related problems” was too vague to serve as proper notice. Even accepting the testimony of Ms. Morack as credible, which the Court must do, the testimony cannot support proper notice.

In a decision sure to be well-received by PA workers’ compensation attorneys (at least those of us who represent injured workers), the Supreme Court of Pennsylvania reversed the Commonwealth Court, and reinstated the award of workers’ comp benefits. An exact diagnosis is not required for there to be proper notice. Also, the conversation(s) between an injured worker and his or her employer is to be viewed in context; the notice need not be given within a single conversation. By its nature, this is a fact-sensitive area. The Supreme Court found that Commonwealth Court failed to fully consider the effect of what Claimant said to her employer on January 17, 2005. Given this information, the subsequent voicemail message, and the fact Claimant had not been at work since January 17, 2005, the employer should have been aware of a work injury. The Supreme Court also noted that “the humanitarian purpose of the (Pennsylvania Workers’ Compensation Act) directs that ‘a meritorious claim ought not, if possible, be defeated for technical reasons.’” Under these circumstances, said the Supreme Court, deference should be given to the findings of the WCJ in such a fact-intensive inquiry.

Even more warming to the heart of lawyers representing injured workers in Pennsylvania is the concurring opinion filed by two of the Justices of the Supreme Court. In this concurring opinion, the Justices joined in the opinion of the majority, but wanted to chastise the employer for “inappropriate corporate conduct.” The Justices felt the company mistreated a longtime employee. Specifically, the Justices wrote:

Rather than acknowledging the undisputed genesis of her injuries and paying her the due compensation, Genex opted to pursue a technical defense in the hope of avoiding its rightful obligations. It is unfortunate that someone in corporate management chose to pursue this regrettable course.”

Since we see such cold-hearted decisions by employers on a regular basis, we truly hope the enlightened words of the Supreme Court resonate throughout Corporate America.

July 1, 2011

Offer of Modified Work to Injured Worker in PA Need Not Describe Duties

One of the ways a workers’ compensation insurance carrier in PA can be relieved of paying workers’ comp benefits to an injured worker in Pennsylvania is by showing that employment is “available” to the injured worker, as described previously in our blog.

Prior decisions by both the Supreme Court of Pennsylvania, and the Commonwealth Court of Pennsylvania, make clear that if an injured worker would not reasonably be aware of the duties involved with a modified job offer, the job offer is not sufficient. Typically, if the injured worker has not previously worked in the position to which he is being offered, “the employer must provide information related to the job duties and classification so that the claimant can make an informed decision regarding whether the position offered is within (his or) her capabilities.” [Quoting language in the decision of Eidem v. Workers’ Compensation Appeal Board (Gnaden-Huetten Mem’l Hospital) from the PA Supreme Court].

This brings us to the recent decision by the Commonwealth Court of Pennsylvania in Vaughn v. Workers’ Compensation Appeal Board (Carrara Steel Erectors). Here, Mr. Vaughn was a union ironworker, who injured his back while performing heavy duty work. Some time after the injury an “Independent” (Which we know is anything but) Medical Examination (IME), released Mr. Vaughn to light duty work.

The Employer sent Mr. Vaughn a letter stating, in relevant part, “Your activities at work will be modified to accommodate the restrictions identified in the (IME).” There was no information as to how the position would be modified or what duties would be expected of him. Believing he did not have enough information, Mr. Vaughn refused to report for work.

A Petition for Suspension was filed by the workers’ compensation insurance carrier. A witness for the employer described a few menial tasks that Mr. Vaughn could have performed, had he come back to work (putting nuts and bolts together, “repair chokers,” and make deliveries to work sites). The Workers’ Compensation Judge found this witness credible and granted the Petition for Suspension. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

The Commonwealth Court of Pennsylvania affirmed as well. Since the position being offered was the pre-injury position (union ironworker), the Court found that Mr. Vaughn should have been familiar with the duties of the job. Further, since the Employer said they would modify the position to accommodate the restrictions, the notice of the job being offered was sufficient.

As workers’ comp attorneys representing injured workers, we found this decision rather disconcerting. If an injured worker previously performed a light duty job, and is then being offered the same light duty job, then it makes logical sense that there would not be a need for the Employer to again describe the duties of the job being offered. That, however, is hardly the same situation as here, where a union ironworker, who performed heavy duty work, would now have to imagine how the Employer planned to make a job that is heavy duty by nature into a light duty job. How exactly can the injured worker “make an informed decision regarding whether the position offered is within (his) capabilities,” if he does not know the duties he will be asked to perform? This decision is further evidence of the unfairness of the Pennsylvania Workers’ Compensation Act, and the need for injured workers to be represented by a firm who knows, and protects, the rights of injured workers.

June 28, 2011

Injured Worker in PA Not Entitled to Rate of Higher Paying Job

Under the Pennsylvania Workers’ Compensation Act, when an injured worker in PA is disabled from his or her job due to a work injury, the injured worker is entitled to workers’ compensation wage loss benefits. This rate is based on the earnings the injured worker had prior to the injury. Those earnings are called the Average Weekly Wage (AWW).

Assuming the injured worker had been working for his or her employer for more than a year before the work injury, the AWW is calculated by taking the average earnings of the injured worker for each of the four 13-week quarters immediately before the injury. The lowest quarter is disregarded and an average is taken of the remaining three quarters. The resulting number is the AWW. The workers’ compensation rate is typically two-thirds of the AWW (if the AWW is very low, the rate could be as high as 90%, if the AWW is very high, the rate is capped at a certain level each year).

Sometimes, these calculations result in a terrible injustice. The most egregious example was fixed by the Supreme Court of Pennsylvania in their decision in Hannaberry HVAC v. Workers’ Compensation Appeal Board (Snyder Jr.) in 2003. There, the injured worker was a part-time employee for most of the year preceding the injury. Shortly before the accident, the injured worker had graduated school and become a full-time employee, earning a wage four times what he had been earning. The accident (in which he was pinned under a forklift) left the injured worker a quadriplegic.

The Supreme Court of PA found that the normal wage calculation, as described above, would not work in this case. That calculation, said the Court, would not reflect the “economic reality” and would not “provide a fair ascertainment of wages.” The Court stated that the calculation as provided in the PA Workers’ Compensation Act “does not control the calculation in a circumstance where it would lead to a grossly and demonstrably inaccurate measure of a worker’s weekly wage.” This decision certainly was consistent with the humanitarian objectives of the PA Workers’ Compensation Act.

Unfortunately, the Hannaberry decision is read strictly by lower Courts and that reasoning is rarely used. Take, for example, the recent decision by the Commonwealth Court of Pennsylvania in Pike v. Workers’ Compensation Appeal Board (Veseley Brothers Moving).

For two of the three quarters immediately preceding the work injury, Mr. Pike was an hourly employee, earning $306.23 and $368.15 per week (The decision does not make clear what the earnings were in the other quarter, though it appears that must have been lower and the quarter that was dropped from the calculation). In the last quarter prior to the work injury, Mr. Pike had been promoted to a new position and earned $1,559.54. The Workers’ Compensation Judge averaged $306.23, $368.15 and $1,559.54, divided by three, and came up with AWW of $744.64 (resulting in a workers’ compensation rate of $496.67).

The injured worker appealed, citing Hannaberry, alleging that his promotion made the AWW unfair and that the AWW did not accurately reflect his earnings. The Court, as has become common practice, limited Hannaberry to its facts and affirmed the WCJ. First, said the Court, the request to use the highest quarter is the exact change the legislature removed in the 1996 amendments to the Act, and the reason to use this quarter was not as moving as in Hannaberry. Second, there was not enough evidence that the earnings would continue to be at that level (and this, of course, stands as a practice hint to those of us representing injured workers!). As such, the Court found that the WCJ did not err, and the AWW was properly calculated.

To attorneys who represent injured workers in PA, though, this calculation certainly seems unfair. Certainly looks like the calculation here “lead(s) to a grossly and demonstrably inaccurate measure of (the) worker’s weekly wage.” But, that’s just our opinion.

June 16, 2011

Contradictory Medical Testimony Cannot Support Finding of Fact by Workers’ Comp Judge

When a PA workers’ compensation claim is denied by the insurance carrier, it is up to the injured worker to file a Claim Petition. In litigating a Claim Petition before a Workers’ Compensation Judge (WCJ), the injured worker bears the burden to prove that he or she suffered an injury, which was related to his or her job, and was rendered disabled by such injury.

It is the WCJ who makes the critical determination of who is credible in this litigation. Neither the Workers’ Compensation Appeal Board (WCAB), nor the Pennsylvania system of Courts, can substitute their opinions on credibility of witnesses. However, the testimony of the credited witness must be “unequivocal.”

This area was highlighted recently by the Commonwealth Court of Pennsylvania in Potere v. Workers’ Compensation Appeal Board (KEMCORP). Here, the WCJ found the Independent Medical Examiner (IME; in reality, a Defense Medical Examiner [DME]) credible, and denied the Claim Petition filed by the injured worker. The WCAB affirmed.

The Court reversed this credibility determination, because it found the testimony of the IME physician was “equivocal.” In his testimony, at first, the IME doctor said the injured worker was limited to light to medium duty, but that he would be ready for full duty in a few weeks. Later in the deposition, the IME doctor said there were no objective findings and that the injured worker could return to his regular employment. Though this was found credible by the WCJ, the Court found these opinions contradictory and said the WCJ could not base his decision on such testimony. The Court remanded the case back to the WCJ, to decide the case again, in light of this change.

Notably, the Court affirmed another area of this decision, finding that it was perfectly fine for the workers’ comp insurance carrier to revoke a Notice of Temporary Compensation Payable (TNCP), and issue a Notice of Denial (NCD), despite that there was no dispute an injury took place (and ongoing disability was the only issue in dispute). We continue to hope that the new Bureau form of the NCD stops this incredibly silly, and dangerous, practice.

June 10, 2011

No Suspension of PA Workers’ Comp Benefits for Voluntary Removal from Labor Market Unless Employer Proves Injured Worker Voluntarily Retired

Cases dealing with benefits stopping in PA workers’ compensation, due an alleged “retirement” of the injured worker, are frequent on our blog. Usually, Pennsylvania Courts are reading the PA Workers’ Compensation Act ever more strictly. A recent case, however, gives hope to the injured worker in Pennsylvania.

In Keene v. Workers’ Compensation Appeal Board (Ogden Corp.), the Commonwealth Court of Pennsylvania reversed the Workers’ Compensation Appeal Board (WCAB), who in turn had reversed the Workers’ Compensation Judge (WCJ), when the WCJ denied a Petition for Suspension (for an alleged voluntary withdrawal from the labor market).

The WCJ found that the injured worker, who had hurt her knee at work in 1989, had not voluntarily withdrawn from the labor market, and denied the workers’ comp insurance carrier’s Petition for Suspension. The injured worker said she had looked for work for a long time and the failure to find any work had depressed her, so she stopped even looking. The WCAB reversed, finding that the injured worker failed to look for a job for a two-year period, showing that she had withdrawn from the labor market.

In a decision recognizing both reality and the humanitarian nature of the PA Workers’ Compensation Act, the Court reversed the WCAB. Essentially, the Court found that whether the injured worker looked for work is irrelevant in this context UNTIL the workers’ comp insurance carrier proves the injured worker “retired.” Here, the injured worker did not file for a pension, nor did she seek Social Security Retirement Benefits (though she was receiving Social Security Disability Benefits). There were no indicia at all that the injured worker had “retired.” As such, found the Court, the Petition for Suspension must fail.

June 3, 2011

Pain and Continuing Effects of Spinal Surgery Does Not Preclude Termination of Workers’ Compensation Benefits in PA

In Pennsylvania workers’ compensation matters, a workers’ comp insurance carrier can only get a “Termination” of benefits when the injured worker is “fully recovered” from his or her injury. This sounds like, and should be, a difficult standard for the insurance carrier to meet. Unfortunately, as happens too often in law, the appearance is deceiving.

Recently, the Commonwealth Court of Pennsylvania decided the matter of Schmidt v. Workers’ Compensation Appeal Board (IATSE Local 3). Mr. Schmidt suffered a herniated disc in his low back and a lumbar strain in an accident at work. For this injury, the injured worker had extensive surgery, which the Court related as:

L3-4 decompressive laminectomy, right-sided microdiscectomy, fusion utilizing autologous laminectomy bone and symphony augmented bone bank bone, pedicle screw fixation at L3 and L4 bilaterally utilizing the Expedium DePuy spine instrumentation
system
.”

Eventually, the workers’ comp insurance carrier sent Mr. Schmidt to an Independent Medical Examination (IME)[More realistically a Defense Medical Exam, or DME]. The IME physician found mild atrophy in Mr. Schmidt’s right leg that he felt would resolve in time. An absent knee reflex was also noted. Finally, the IME doctor agreed that Mr. Schmidt may continue to have pain in his back at times, from the work injury, and use of Ibuprofen for that pain would be reasonable. Despite all of that, the IME noted that none of the findings were “functional” and found Mr. Schmidt fully recovered from the work injury (to add to the absurdity, the surgery placed instrumentation, possibly metal rods, in the low back, which were still there).

The Workers’ Compensation Judge (WCJ) found the IME doctor credible and granted the Petition to Terminate. On appeal, the Workers’ Compensation Appeal Board (WCAB) affirmed. The injured worker appealed to the Commonwealth Court of PA. At that Court, he argued there cannot be a Termination of benefits when even the IME doctor agrees there remains atrophy, lost reflex, ongoing pain and surgically placed instrumentation in the spine.

Amazingly, the Court agreed with the WCJ and WCAB and affirmed the Termination of benefits under the PA Workers’ Compensation Act. The Court found the testimony of the IME doctor sufficient to support a Termination. That testimony failed to indicate there were “objective medical findings to substantiate the claim of pain,” which, said the Court, is consistent with a Termination of benefits. The opinion of the IME doctor was that the work-related injury had fully resolved, and this was found adequate by the Court.

Decisions such as this sadden and disappoint those of us who devote our practices to representing injured workers in Pennsylvania. The Courts in PA often give lip service to the fact that the PA Workers Compensation Act is “remedial legislation” and must be read “liberally” to allow the Act to serve its “humanitarian purposes.” When it comes time for the ultimate decision, however, it is hard to picture a more draconian result.

The injured worker in this case suffered a significant injury, and had to have an extensive surgery. He continues to have completely objective findings, such as atrophy and lost reflex in the knee. How in the world can this be “fully recovered” under any definition?

There was no compensation for his pain and suffering. Since Pennsylvania is a “wage loss” State, as long as the injured worker was able to go back to gainful employment (and to his credit, he was), no additional compensation was due at all. All that remained was the availability of medical treatment, and the Court callously slammed the door shut on that. What happens if the instrumentation, which was surgically implanted in the spine, breaks or comes loose? What happens if the pain worsens, so that additional prescriptions are necessary? What if the medications are not sufficient, and additional pain management techniques are required? It appears the Court has officially stated that, for the record, nobody cares.

This is the plight of the injured worker in Pennsylvania, and this is the reason we dedicate our practice to working to protecting injured workers’ rights throughout the State of Pennsylvania.

May 13, 2011

Medical Treatment in PA Workers’ Comp Not Reasonable or Necessary Because No Significant Improvement

Utilization Review is the proper course of action when either party in a PA workers’ compensation case questions whether medical treatment is reasonable and necessary. We have discussed this process in a previous blog entry.

Since the Pennsylvania Workers’ Compensation Act is remedial legislation, intended by its creators to provide the injured worker with the benefit of the doubt, what is considered “reasonable and necessary” does not have to cure a condition. As PA Courts have previously stated, “Treatment may still be reasonable and necessary ‘even when it is designed to manage the claimant’s symptoms rather than to cure or permanently improve the underlying condition.’”

A recent case, Gary v. Workers’ Compensation Appeal Board (Philadelphia School District), decided by the Commonwealth Court of Pennsylvania seems to certainly blur this line. In 2001, Ms. Gary injured her neck and back while working. Then, in 2003, a Utilization Review Determination found the treatment of a chiropractor to be reasonable and necessary.

The workers’ comp insurance carrier, undaunted, again sought Utilization Review in 2008, on the same chiropractor, concerning the same treatment. The Workers’ Compensation Judge (WCJ) found the Utilization Reviewer credible, when the Reviewer said the treatment at issue was not reasonable or necessary because it failed to show significant improvement. The testimony of the injured worker, that the treatment gave her relief, was not believed by the WCJ. In her decision, the WCJ did not even mention the 2003 Utilization Review Determination. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

Upon further appeal, the Commonwealth Court of Pennsylvania also affirmed. The Court noted that the failure of the WCJ to even mention the 2003 Utilization Review (regarding the same provider, giving the same treatment) was harmless, given the period of time in between the two URs, and the fact that the WCJ credited evidence showing a change in condition in that span of time. Further, the Court found that, while treatment can be reasonable and necessary while still simply relieving pain, the WCJ credited the testimony of the Utilization Reviewer, who found the treatment did not yield “significant improvement.” As such, the Court concluded, the workers’ comp insurance carrier met its burden of proving the chiropractic treatment was not reasonable or necessary.

As attorneys who limit their practice to representing injured people in PA workers’ compensation cases, we were greatly disappointed in this decision. Though the Court gave lip service to the proper standard, that treatment can be reasonable and necessary simply because it relieves pain, ultimately, the Court ignored the concept. The use of the term “significant improvement” as part of the reasoning behind the decision demonstrates the lack of true understanding. Workers who have severe injuries, such as disc herniations in the cervical or lumbar spine, separated shoulders, total knee replacements, thoracic outlet syndrome and complex regional pain syndrome, just to name a few, find simple pain relief, even if only temporary, to be worth an incalculable price. Sadly, our court system believes otherwise.

May 9, 2011

Supreme Court of Pennsylvania Accepts Appeal in Phoenixville Hospital v. Workers' Compensation Appeal Board (Shoap)

Previously, we posted a blog entry on the Commonwealth Court of Pennsylvania decision in Phoenixville Hospital v. Workers’ Compensation Appeal Board (Shoap). This was the decision where the Commonwealth Court was unmoved when the injured worker applied for every job in a Labor Market Survey and found none available to him. The Court said the workers’ compensation insurance carrier can still obtain a Modification or Suspension of workers’ comp benefits in this situation.

Thankfully, the Supreme Court of Pennsylvania accepted appeal in this matter on April 27, 2011. We will certainly keep our readers informed when the Supreme Court of PA reaches a decision.

May 3, 2011

Whether Injured Worker Voluntarily Left Labor Market, and Whether Injured Worker Subsequently Re-Entered Labor Market, Are Within Purview of PA Workers’ Compensation Judge

The issue of “retirement” and “voluntary withdrawal from the labor market” is one we see often in Pennsylvania workers’ compensation. We have had blog entries on how applying for Social Security Retirement benefits can impact the receipt of PA workers’ comp benefits, and how receipt of pension benefits can have such effect. In fact, I have given a seminar on this very topic in the past.

So, when the Commonwealth Court of Pennsylvania tackles this issue, we certainly take note. Recently, the Court rendered a decision in the matter of City of Pittsburgh v. Workers’ Compensation Appeal Board (Leonard). Here, the Workers’ Compensation Judge (WCJ) granted a suspension of benefits for a “voluntary withdrawal from the labor market,” but did so at a later date than the workers’ compensation insurance carrier wished, and reinstated benefits thereafter when the injured worker “re-entered the labor market.”

If you are a follower of our blog [and thanks for following us!], you can probably guess that this case turns on the facts. The injured worker here was a police officer who suffered a work injury to his forearm and knee. On April 1, 2006, Claimant received a disability pension, though an Independent Medical Examination (IME) [I chuckle every time I actually write “independent” in that context] found that he was able to work at a light to medium duty level.

Based on the IME, the workers’ comp insurance carrier issued a Notice of Ability to Return to Work on August 16, 2007. The injured worker admittedly did not look for any work. Shortly thereafter, the carrier filed a Petition for Suspension, alleging that the injured worker voluntarily withdrew from the labor market.

As noted in the Robinson and Day cases (which, as of this date, are pending appeal with the Supreme Court of Pennsylvania) , the receipt of a pension does not necessarily create a presumption that the injured worker “retired” or voluntarily withdrew from the labor market. Instead, the facts surrounding the situation must be examined. Primarily, one must determine whether the pension was a “retirement pension,” indicting the injured worker is not planning to perform any work, or a “disability pension,” perhaps only indicating the injured worker cannot perform his pre-injury position.

The WCJ here found that the pension at issue was a disability pension, so the WCJ properly refused to apply the presumption the workers’ comp insurance carrier requested. However, the WCJ did suspend benefits as of August 17, 2007, when Claimant received the Notice of Ability to Return to Work. The WCJ reasoned at that point, Claimant knew, or should have known, that he was required to look for work and failed to do so. This indicated a withdrawal from the labor market.

At the same time, the WCJ was convinced that, as of December 1, 2008, the injured worker was looking for gainful employment in good faith. In a previous blog, we mentioned the Hensal case, with the requirements in this area. Since the WCJ is the ultimate finder of fact, the Commonwealth Court accepted the findings of the WCJ on this issue. As such, the decision of the WCJ was affirmed by the Court.

April 27, 2011

PA Supreme Court Accepts Appeal in Robinson

Back in October, we blogged about the decision of the Commonwealth Court of Pennsylvania in City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson), which addressed what caused a presumption that an injured worker “retired,” entitling the workers’ comp insurance carrier to a suspension of workers’ compensation benefits.

The decision of the Commonwealth Court arguably made a murky area of the law even more confusing, but it also attempted to inject some compassion and logic into an aspect of law short on both.

For better or worse, the Supreme Court of Pennsylvania has accepted an appeal in this matter. Specifically, the issue for the Court to determine is:

“Did the Commonwealth Court err by holding that, in a petition to suspend
compensation benefits based upon an alleged voluntary withdrawal from the
workforce, the employer bears the burden of showing by the totality of the
circumstances that the claimant has chosen not to return to the workforce?”

We will, of course, let you folks know the final result as soon as we are advised.

April 26, 2011

Suspension of PA Workers’ Comp Benefits Denied When Injured Worker Unable to Perform Police Job, Regardless of Loss of Certification

Under the Pennsylvania Workers’ Compensation Act, PA workers’ comp benefits can be suspended by a Workers’ Compensation Judge (WCJ) when an injured worker’s loss of earnings is no longer due to the work injury, but is instead due to reasons other than the work injury.

This issue was recently handed by the Commonwealth Court of Pennsylvania in University of Pennsylvania v. Workers’ Compensation Appeal Board (Hicks).
Here, the injured worker was a police officer for the University of Pennsylvania. While performing his job, he injured his neck and low back in a motor vehicle accident, and became disabled from his job. Subsequent to his injury, Claimant was convicted of a crime which made him ineligible to be certified as a police officer.

As a result the workers’ compensation insurance carrier filed Petitions for Termination and Suspension. After litigating the matter, the WCJ denied both Petitions. The Termination Petition was denied since the WCJ found Claimant’s medical expert (who testified that he was not fully recovered from the work injury) more credible than the medical expert offered by the workers’ comp insurance carrier. The Suspension Petition was denied because the loss of the certification was not automatic, and the workers’ compensation insurance carrier failed to prove the injured worker here lost his certification.

On appeal, the Workers’ Compensation Appeal Board (WCAB) and Commonwealth Court of Pennsylvania both affirmed. The Court found that since the WCJ found that Claimant remained disabled from his job, the status of the certification was irrelevant. Even if the status of the certification was relevant, the Court agreed with the WCJ, stating that the workers’ comp insurance carrier failed to prove the injured worker actually lost his certification.

April 19, 2011

Employer in PA Workers’ Comp Does Not Admit Injury By Requesting Utilization Review

When a workers’ compensation insurance carrier in PA does not believe the medical treatment rendered to an injured worker is reasonable and necessary, the appropriate course of action is for the insurance carrier to file for Utilization Review (UR). This was discussed in a previous blog entry. In this process, the PA Bureau of Workers’ Compensation will randomly assign a Utilization Review Organization (URO) to determine whether the treatment at issue is reasonable and necessary. The URO cannot address whether the treatment is related to the work injury.

This distinction became critical for the Commonwealth Court of Pennsylvania in Securitas Security Services v. Workers’ Compensation Appeal Board (Schuh). The injured worker fell off a chair and suffered a low back strain. Subsequently, the injured worker began to receive psychological treatment for depression. When the workers’ comp insurance carrier received bills for the psychological treatment, the carrier filed for UR.

A UR Determination was rendered by the URO, finding the treatment reasonable and necessary. The workers’ comp insurance carrier elected not to appeal this UR Determination.

The injured worker then filed a Petition to Review, seeking to add psychological injury to the accepted work injury. As evidence, the injured worker offered only the unappealed UR Determination. The Workers’ Compensation Judge (WCJ) granted the Review Petition, finding that the workers’ comp insurance carrier’s decision to institute the UR process, and the failure to appeal the UR Determination, effectively acknowledged the psychological injury was related to the work injury. The Workers’ Compensation Appeal Board (WCAB) affirmed.

On appeal, the Commonwealth Court of PA reversed. The sole issue to be decided by the URO was whether the treatment was reasonable and necessary. In fact, the law precludes a URO from even addressing the relatedness of a condition. As such, held the Court, a UR Determination, by itself, cannot support a Petition to Review to amend the description of injury.

April 4, 2011

Claim Petition in PA Workers’ Comp Denied, Despite Notice of Denial Acknowledging a Work Injury

As discussed in previous blog entries, Commonwealth Court of Pennsylvania has held that a Notice of Denial (NCD) can be used to properly “accept” a work-related injury. This continues to disappoint, and confuse, at least some of us who spend our careers protecting the rights of the injured worker. Logically, how can one use a Notice of DENIAL to accept an injury, and, if that is the proper method to do so, why did the PA Bureau of Workers’ Compensation go to the trouble of creating the Medical-Only Notice of Compensation Payable (NCP)?

Recently, this concept was confirmed by the Commonwealth Court of PA in Morrison v. Workers’ Compensation Appeal Board (Rothman Institute). Here, an NCD was issued over a year after the work injury (as noted in a previous blog entry, a PA workers’ comp insurance carrier has 21 days to issue documentation accepting or denying a claim). On the NCD, Box 4 was checked, acknowledging that an injury took place, but disputing that the injured worker was disabled as a result of the injury.

The Workers’ Compensation Judge (WCJ) rejected the testimony of Claimant, and the evidence from Claimant’s medical experts, and denied the Claim Petition. On appeal, the Workers’ Compensation Appeal Board (WCAB) affirmed. The Commonwealth Court of Pennsylvania also affirmed.

As we have discussed here previously, a WCJ makes the final determination as to the credibility of witnesses. Here, the WCJ found Claimant and Claimant’s medical evidence not credible. Therefore, I have no real issue with the Claimant not being successful in proving disability. However, this NCD, which the PA workers’ compensation insurance carrier issued, acknowledged that an injury took place. As such, I find it inconceivable that the Claim Petition could be denied entirely. That an injury took place in the scope and course of employment was admitted by a document the insurance carrier filed with the Pennsylvania Bureau of Workers’ Compensation. In my view, the Claim Petition should have been granted, but the request for disability should have been denied. A matter of semantics, perhaps, but what happens three years and a day after the injury? The Statute of Limitations expires at that point. What is the status of the work injury then? Can the injured worker get medical treatment then? All good, and unanswered, questions.

March 18, 2011

Worker Hurt Jumping Down Stairs Not Entitled to Pennsylvania Workers’ Compensation Benefits

Under the Pennsylvania Workers’ Compensation Act, a worker who gets injured while doing his or her job is entitled to PA workers’ comp benefits when the injury “arises in the course of his (or her) employment and related thereto.” (Section 301(c)(1) of the Pennsylvania Workers’ Compensation Act).

What does that mean? Generally speaking, an injury happens in the “course of employment” when the worker is “actually engaged in furtherance of the employer’s business or affairs,” whether the injury takes place on or off the employer’s premises. An injury can also be in the “course of employment” even when the worker is not engaged in furtherance of the employer’s business, if certain conditions are met.

As you can imagine, this determination varies from case to case, highly depending on the facts in each situation. Recently, the Commonwealth Court of PA addressed this area in Pennsylvania State University v. Workers’ Compensation Appeal Board (Smith). Here, the claimant, on a half-hour lunch break, intentionally jumped down a flight of stairs, suffering significant injuries to both legs (distal right tibia fracture and talar dome fractures of the right ankle and a fracture of the distal tibia and the talus of the left ankle).

After litigation of the matter, the Workers’ Compensation Judge (WCJ) granted the Claim Petition, awarding PA workers’ comp benefits. On appeal, the Workers’ Compensation Appeal Board (WCAB) affirmed, finding that the act of jumping down the stairs was not “an activity so foreign to his regular work duties as to remove him from the scope of employment.”

The Commonwealth Court of PA, however, reversed the decision of the WCJ. Despite the fact the injured worker was staying on the premises of employer for his lunch break, the Court found that he could not be said to be furthering employer’s business or affairs. The act was not an accident or inadvertent slip, but a conscious decision. The Court found such an action “wholly foreign to his employment.” As such, the actions of the injured worker, said the Court, removed him from the course and scope of his employment. The Claim Petition, found the Court, must be denied.

Once again, this case serves as a lesson for how workers’ comp cases in PA can hinge on the precise facts in each case. This highlights the importance of selecting an experienced Pennsylvania workers’ compensation attorney.

March 10, 2011

PA Work Injury Can be Amended Without Petition

Once a work injury in Pennsylvania is accepted by Notice of Compensation Payable (NCP), there is a process to add to, or change, the description of the accepted injury or condition. Sometimes, this is critical, to make the workers’ comp insurance carrier pay for treatment for the injury or condition at issue.

As discussed in a previous blog entry, the process differs slightly, depending on whether the injury or condition was present on the day of the injury (called a “corrective amendment”), or occurred thereafter (called a “subsequently-arising” or “consequential” condition). While both types have the same time limitations to be raised (within three years of the date of last payment), the difference between the two can be the difference between winning and losing.

For example, look at the recent decision of the Commonwealth Court of Pennsylvania in the case of Pizza Hut, Inc. v. Workers’ Compensation Appeal Board (Mahalick). Here, the claimant’s injury was accepted by NCP as a low back strain or sprain. Her workers’ compensation benefits were suspended as of March 26, 2003. On December 26, 2006, claimant filed a Petition to Review, to amend the description of injury to include bulging discs and facet arthropathy in her lumbar spine.

Since this was filed more than three years after the date of the last payment, claimant’s Petition for Review would have been too late. Except, fortunately for claimant, the amendment being sought was a corrective one (not requiring a Petition for Review to be filed) and there was already a Petition pending, filed by the workers’ compensation insurance carrier BEFORE the three years expired.

The Court found that since the litigation was instituted before the expiration of the three years from the date of last payment, and a corrective amendment can be made by a Workers’ Compensation Judge (WCJ) “in the course of the proceedings under any petition pending before such workers’ compensation judge,” [Quoting Section 413 of the Pennsylvania Workers’ Compensation Act], the requested amendment was timely. Since the WCJ found claimant’s medical evidence credible, claimant prevailed.

Had this been a request for a “subsequently-arising” or “consequential” condition, however, claimant would have lost, since her Petition for Review was filed beyond the allotted three years.

March 4, 2011

Commonwealth Court of PA Vacates Decision in Butler

Recently, we posted a blog entry on the case of City of Philadelphia v. Workers’ Compensation Appeal Board (Butler), decided by the Commonwealth Court of Pennsylvania on December 16, 2010. In this opinion, the Court allowed a suspension or termination of workers’ compensation benefits to take place on a date before the issuance of a Notice of Compensation Payable (NCP). This appeared in conflict with existing case law from the Supreme Court of Pennsylvania.

We were notified by the attorney who litigated this case that the Commonwealth Court of PA granted a motion for en banc review of the case (most opinions of the Court are decided by a panel of Judges; an “en banc” review involves all of the Judges of the Court). Further, this Order of the Court, issued on February 24, 2011, vacated the decision which had been issued on December 16, 2010. The Court, after the en banc review, will issue a new opinion.

March 1, 2011

PA Workers’ Comp Appeals – Finding of Fact or Conclusion of Law?

As attorneys who limit their practice to representing people who have been injured at work in PA, we often have the misfortune to see a potential new client who has already lost his or her case with another attorney.

Previously, in a blog entry, we have discussed the appeals process in Pennsylvania workers’ compensation. As discussed in that blog entry, often there is nothing we can do to help the injured worker at that point. The Workers’ Compensation Appeal Board (WCAB) can usually only disturb the opinion of a Workers’ Compensation Judge (WCJ) if the WCJ committed an error of law. Simply disagreeing with the WCJ is not sufficient.

This principle was tested somewhat recently in the case of City of Pittsburgh v. Workers’ Compensation Appeal Board (Wilson), decided by the Commonwealth Court of Pennsylvania. Here, the injured worker was hurt and the Notice of Compensation Payable (NCP) described the injury as “thoracic strain.” The injured worker sought to amend the description of the injury to include a cervical strain, an aggravation of her pre-existing cervical degenerative disc disease and a rotator cuff tear. The workers’ compensation insurance carrier agreed to accept the cervical strain, but refused to accept the other conditions.

In the ensuing litigation, the medical expert offered by the injured worker did not testify about the neck. The doctor hired by the workers’ comp insurance carrier, for an “Independent Medical Examination” (IME), had drafted a report stating that the work-related injury did aggravate the pre-existing degenerative condition in the neck. In his deposition, however, the IME doctor stated that he meant to say “did not” and the opinion stated in the IME report was merely a typographical error.

The WCJ found the true opinion of the IME doctor was that stated in the IME report and granted the Review Petition, amending the description of injury to include both the aggravation of her pre-existing cervical degenerative disc disease and the rotator cuff tear. On appeal, the WCAB affirmed, finding that, as noted above, determinations of credibility of any witness, in whole or in part, was within the sole discretion of the WCJ.

Upon further appeal, however, the Commonwealth Court of Pennsylvania reversed the decision of the WCJ. The Court found that the only evidence supporting the aggravation of the degenerative condition in the neck was that in the initial IME report, which was then recanted in the deposition of the IME doctor. A recanted opinion, said The Court, is, as a matter of law, equivocal, and cannot be used to support a finding of fact in the decision of a WCJ. The Court went on to point out that the sentence in the report at issue is contrary to the remainder of the IME report (which, to this writer, appears suspiciously close to reviewing determinations of credibility, which, of course, is not permissible upon appeal). The Court also noted that the report, itself, is “hearsay” and not admissible; this is the reason medical experts testify at depositions.

Though this appears close to the line of distinguishing “error of law” from “finding of fact,” in due respect to The Court, the result of the decision is not unreasonable. Given the odd facts (typically, the injured worker’s medical expert would support the petition at issue), however, we anticipate this decision will not be terribly damaging to the rights of the injured worker in PA.

February 14, 2011

PA Workers’ Compensation Judge is Final Word on Credibility of Witness

Since our entire practice is limited to representing injured workers in PA workers' compensation cases, we occasionally get a call from an injured worker who has already lost their case with another attorney, and wanting us to handle an appeal. Unfortunately, frequently, there is nothing we can do to help at that point.

Once a Workers' Compensation Judge (WCJ) renders a decision, provided it is a "reasoned decision" (generally that is defined as a decision which is capable of appellate review), only an "error of law" can be properly appealed. The determinations of credibility, and findings of fact, rendered by the WCJ are not usually subject to appeal.

This concept was recently reinforced by the Commonwealth Court of Pennsylvania in Shannopin Mining Company v. Workers’ Compensation Appeal Board (Sereg). Essentially, when a WCJ makes findings of fact, and explains the basis for determinations of credibility, an appellate Court, whether the Workers' Compensation Appeal Board (WCAB) or the Pennsylvania Court System, cannot "second guess" those determinations of credibility, or substitute their own determinations of credibility. Even if the appellate body feels they would have decided the case differently, the determinations of the WCJ are final and binding. This, of course, highlights the importance of litigating the case before the WCJ.

February 3, 2011

Psychological Injury in PA Workers' Comp for Police Officer Very High Standard

We have discussed psychological injuries in the Pennsylvania workers' compensation system in previous blog entries. We have even discussed our own cases in this area. The theme throughout this aspect of the Pennsylvania Workers' Compensation Act is the requirement that the psychological injury be caused by "abnormal working conditions."

Whether the injured worker was exposed to "abnormal working conditions" depends on the type of job the injured worker performs. What may be common and expected in one field, may be abnormal to another.

As you may expect, police officers, firemen, rescue workers and other first responders are held to a higher standard, since they can be expected to face conditions far more traumatic or upsetting than an accountant or a secretary, for example.

Recently, the Commonwealth Court of Pennsylvania issued a decision in the matter of Washington v. Workers’ Compensation Appeal Board (Cmwlth of PA State Police). In this case, the injured worker was a Field Trooper for the Pennsylvania State Police, who, on occasion, worked as a photographer for the Forensic Services Unit. While in this role, the injured worker was exposed to three homicide investigations, which required him to photograph murder victims, including a burned corpse and an infant. As a result of his work on the Forensic Services Unit, the injured worker developed post-traumatic stress disorder (PTSD).

The Workers' Compensation Judge (WCJ) denied the Claim Petition filed by the injured worker, finding that the conditions faced by him were not "abnormal" for a person in his field. The Workers' Compensation Appeal Board (WCAB) affirmed this decision on appeal.

On appeal to the Commonwealth Court of Pennsylvania, the injured worker argued, essentially, that these conditions were not "normal" and that the WCJ failed to account for his pre-existing psychological condition. The Court affirmed the decision of the WCJ, finding that the evidence of record showed that a member of the Forensic Services Unit of the Pennsylvania State Police could expect to see conditions such as these, and that a pre-existing psychological condition does not remove the need for an injured worker in PA to prove that "abnormal working conditions" led to his psychological injury.

Once again, the Court demonstrates the difficulty of winning a claim for psychological injury in PA workers' comp. As attorneys representing injured workers, this is troubling for us. In basic fairness, why should psychological injury be treated differently than physical injury? The PA workers' compensation system is said to be a "no fault" system. If a worker walks into a wall and breaks his arm, that is a valid workers' comp claim. It just seems fundamentally unfair to treat psychological injuries so differently.

January 18, 2011

PA Workers’ Comp Benefits Suspended Before NCP issued

**Update - This opinion was vacated (withdrawn) by the Commonwealth Court of Pennsylvania on February 24, 2011. The en banc (all of the Judges) Court will review the case and issue a new decision**

Under the Pennsylvania Workers’ Compensation Act, an employer or, more likely, workers’ compensation insurance carrier, has 21 days to accept or deny a workers’ comp claim in PA. An acceptance can be accomplished by issuing a Notice of Compensation Payable (NCP), Notice of Temporary Compensation Payable (TNCP) or an Agreement for Compensation. A rejection of a claim requires that a Notice of Denial (NCD) be filed (there are, of course, nuances and exceptions, but this is generally the case).

The Supreme Court of Pennsylvania held back in 1983 (Beissel v. Workers’ Compensation Appeal Board (John Wanamaker, Inc.)) that, to obtain a termination of workers’ comp benefits, the workers’ compensation insurance carrier must prove there was a change of condition after the NCP was issued. But, what if an injured worker recovers before an NCP can be issued?

This very issue was faced by the Commonwealth Court of PA in City of Philadelphia v. Workers’ Compensation Appeal Board (Butler). Here, the claimant was involved in a motor vehicle accident while doing her job. A doctor pronounced her fully recovered from her work injury on October 19, 1995. A job offer was made shortly thereafter. On November 7, 1995, the City of Philadelphia issued an NCP, accepting the claim.

Subsequently, the City of Philadelphia filed a Petition for Suspension and Termination, as of October 19, 1995. The Workers’ Compensation Judge (WCJ) found the doctor offered by the City of Philadelphia credible, and granted the Petition for Termination. On appeal, the Workers’ Compensation Appeal Board (WCAB) affirmed.

The Commonwealth Court of PA, however, reversed, holding that, under Beissel, the Termination Petition could not be granted, because there was no change in condition shown after the date of the NCP. The Court remanded (sent back to the WCJ) for a decision on the Suspension Petition.

After the WCJ granted the Suspension Petition on the remand, and it was affirmed by the WCAB, the Court again considered the issue, this time regarding the Suspension Petition. This time, the Court found that the date an NCP is issued does not bar a Suspension or Termination as of any certain date. Instead, the key is whether the Suspension or Termination seeks to dispute some aspect of the NCP. Since the Suspension here did not dispute any aspect of the NCP, the WCJ properly granted the Suspension.

As attorneys who represent injured workers in PA, we have trouble reconciling the two decisions by the Commonwealth Court in this matter. While the Court did not vacate its initial decision, the reasoning of the second decision completely undermines the basis of the first. It remains unclear why the Suspension in Butler would be granted, but the Termination would not. As we say so frequently, we, as attorneys, ask for nothing more than consistency and reliability in our judiciary. Cases like this make trying cases, and advising our clients, especially difficult.

January 11, 2011

PA Workers’ Comp Law Expands Definition of “Employee”

Under the Pennsylvania Workers’ Compensation Act, to be eligible for PA workers’ comp benefits, the disabled person must be an “employee.” Often, this is obvious and not even in question. There are times, however, when a case turns on whether, in fact, the injured person was truly an “employee.” We most often see this situation when the issue is whether the injured worker was an “employee” or an “independent contractor.”

The analysis, to determine whether someone was an “employee” or an “independent contractor,” depends on the facts in each case. It frequently becomes a very complicated issue, requiring multiple depositions and extensive litigation.

At least some of this situation will be easier to determine, now that the Pennsylvania Legislature passed Act 72 of 2010, on October 13, 2010 (This is listed as House Bill 400). The law will take effect 2/11/11. While this law applies only to the construction industry, we expect that to be read broadly, to include roofing, plumbing and other related areas.

Under Act 72, an injured worker (in the construction industry) will be considered an “independent contractor” only if all of the following conditions are met:

(1) the individual has a written contract to perform such services;
(2) the individual is free from control or direction over performance of
such services both under the contract of service and in fact; and
(3) as to such services, the individual is customarily engaged in an independently established trade, occupation, profession or business.

This law should significantly limit an employer’s ability to try and escape liability under the PA Workers’ Compensation Act, and make it easier for injured workers in the construction industry to get the workers’ comp benefits they need.

January 3, 2011

Wage Loss in PA Workers’ Comp Must be Related to Work Injury to be Compensable

In PA workers’ comp, when an injured worker returns to employment, there is a change in the workers’ compensation benefits he or she receives. If the injured worker is again earning the wages he or she earned before the work injury, then workers’ comp benefits are stopped completely (“suspended”). If the injured worker is earning less than before the injury, as a result of the injury, then workers’ comp benefits may only be “modified” to a lower rate.

Often the key to whether modified workers’ compensation benefits continue, in the case of an ongoing loss in wages, is whether the ongoing loss in wages is actually a result of the injury.

Recently, the Commonwealth Court of Pennsylvania addressed this issue in Trevdan Building Supply v. Workers’ Compensation Appeal Board (Pope). In this case, the employee ruptured his biceps tendon while unloading building material. Eventually, the injured worker was released to resume his regular duty employment, without any specific restriction, though his doctor noted that he may require some assistance with heavy lifting (which was also the case, on occasion, prior to the injury).

The injured worker went back to his regular duty position, and regular wages. The workers’ comp benefits were then suspended. Due to the economic downturn, the employer stopped offering overtime to the employees. As a result, the injured worker’s wages became lower than his “Average Weekly Wage” under the workers’ compensation case (which had included the previous overtime).

Since he was now losing wages, the injured worker filed a Petition for Reinstatement. The Workers’ Compensation Judge (WCJ) denied ongoing workers’ comp partial disability benefits, since the loss in wages resulted from a general economic situation, rather than the work injury.

The Workers’ Compensation Appeal Board (WCAB) reversed the WCJ, but upon further appeal, the Commonwealth Court of PA reversed the WCAB and reinstated the decision of the WCJ. The Court agreed with the WCJ that the ongoing loss in wages was not shown to be as a result of the work injury. The Court did observe that the situation may be different if the injured worker did not return to his pre-injury position, without restriction.

December 20, 2010

IRE in PA Workers’ Comp Must Use Most Recent Edition of AMA Guides

As noted in the previous blog posting, the PA Workers’ Compensation Act mandates that an Impairment Rating Evaluation (IRE) must be performed using the “most recent edition” of the American Medical Association’s Guides to the Evaluation of Permanent Impairment. The most recent edition is the Sixth Edition, published around January 2008.

The Pennsylvania Bureau of Workers’ Compensation, in early 2008, stated that it would accept an IRE performed under the Fifth or Sixth Editions until September 1, 2008, to give IRE physicians a chance to become certified under the new edition.

Whether this pronouncement by the PA Bureau of Workers’ Compensation was consistent with the Pennsylvania Workers’ Compensation Act was addressed by the Commonwealth Court of Pennsylvania in Stanish v. Workers Compensation Appeal Board (James J. Anderson Construction Co.).

In this case, an IRE was performed in April, 2008, using the Fifth Edition of the AMA Guides. Under the pronouncement by the PA Bureau of Workers’ Compensation, the Workers’ Compensation Judge (WCJ) found the IRE valid and granted the shift of total disability benefits to partial disability benefits as requested by the workers’ comp insurance carrier. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

On appeal, however, the Commonwealth Court of Pennsylvania reversed. The PA Workers’ Compensation Act specifically states that the “most recent edition” of the AMA Guides must be used. The pronouncement by the PA Bureau of Workers’ Compensation, that IRE physicians could still use the Fifth Edition, after the Sixth Edition was published, was inconsistent with the Act, and not valid. Since the IRE in the case at issue was performed using the Fifth Edition, after the date the Sixth Edition was published, the IRE did not use the “most recent edition,” and was therefore not valid.

December 2, 2010

Hearing Loss in PA Not Compensable if Less Than 10% Binaurally

It is funny how, after relatively few PA workers’ compensation hearing loss cases were decided by the Commonwealth Court of Pennsylvania, now, all of a sudden, it seems like every case decided by the Court is on this issue.

In our previous blog post, we mentioned that an injured worker in PA must have at least a 10% “binaural” (both ears) hearing impairment to receive any workers’ compensation benefits for a work-related loss of hearing. Since the statute clearly states that the loss of hearing is to be evaluated by looking at the effect on both ears, what happens if the loss is just in one ear? Recently, the Court addressed this very issue in Duncannon Borough v. Workers’ Compensation Appeal Board (Bruno).

Here, the injured worker, a police officer, was in a motor vehicle accident while in the scope and course of his employment. As a result of this accident, in addition to other injuries, he suffered a 31.88% hearing impairment to his right ear. Calculated “binaurally,” the hearing impairment was below the 10% threshold. The Workers’ Compensation Judge (WCJ) granted the Review Petition, finding that the injury to the single ear did not need to be calculated binaurally. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

On appeal, the Commonwealth Court of Pennsylvania reversed, denying the Review Petition. The Court found that, although one can receive PA workers’ compensation benefits for a loss of hearing in only one ear, the threshold of 10%, binaurally, still must be reached before the injured worker is eligible to receive any PA workers’ comp benefits for a work-related loss of hearing.

November 24, 2010

Hearing Loss in PA Workers’ Comp

Though, generally speaking, Pennsylvania’s workers’ compensation system is based purely on wage loss, there are exceptions to the rule. With most work-related injuries in PA, workers’ comp is paid only if the injured worker is disabled from his or her job by the work injury.

One large exception is the category of injuries called “specific loss.” This encompasses when an injured worker permanently loses the use of certain body parts or senses. In this event, benefits are paid under the Pennsylvania Workers’ Compensation Act, whether or not there is any disability resulting from the injury. This covers fingers, toes, hands, feet, arms and legs, in addition to the senses of sight and hearing.

Loss of hearing has had many changes in PA workers’ compensation law over the years. In fact, the entire way hearing loss is compensated under PA workers’ comp was changed with Act 1, passed in 1995. For all hearing loss since then, the amount of workers’ compensation benefits paid varies according to the percentage of binaural (both ears) hearing impairment. To receive any workers’ comp benefits, there must be at least a 10% hearing impairment; while, on the other hand, an impairment over 75% is deemed to be a complete loss of hearing.

One issue that arises in hearing loss cases is the contribution of “presbycusis,” the name for the loss of hearing which happens naturally as we age. When addressing the impact of harmful noise-exposure at work in a hearing loss, we also look at the type of hearing loss, as there are different characteristics for different causes. Of course, we also look at other kinds of noise to which the injured worker may have been exposed (military, hunting, power tools, just for a few examples).

Often, a loss of hearing is an insidious, gradual, process, which is not discovered for several years. Indeed, in many of our clients over the years, the injured worker is the last to notice (the family, and friends, who deal with the injured worker, are typically the first to notice).

When the loss of hearing is not raised until after retirement, there can be additional issues arising. One of these issues was faced recently by the Commonwealth Court of Pennsylvania in City of Philadelphia v. Workers’ Compensation Appeal Board (Seaman).

In this case, the injured worker was a fireman in the City of Philadelphia for many years. Several months after he retired, a hearing loss test (known as an “audiogram”) revealed a significant loss of hearing. The injured worker filed a Claim Petition, which was granted by a Workers’ Compensation Judge (WCJ).

The PA workers’ compensation insurance carrier appealed to the Commonwealth Court of Pennsylvania, saying that the injured worker could not win, because he could not prove the extent of hearing loss on the date he retired. The Court, however, rejected this defense and affirmed the granting of the Claim Petition. Unless there was a previous hearing loss test done close in time to the retirement, showing a significantly lesser hearing impairment, there is no such burden on the injured worker, the Court found.

Even more recently, in a decision rendered November 19, 2010, the Commonwealth Court of Pennsylvania again addressed hearing loss in the matter of Joy Mining Machinery Company v. Workers’ Compensation Appeal Board (Zerres). Here, as in the Seaman case above, the WCJ granted the Claim Petition finding a work-related loss of hearing (13.125% hearing loss in this case).

The issues in the Zerres case were whether the injured worker could prove he was exposed to the harmful noise within the three years before a Claim Petition was filed, and whether the WCJ could properly give greater weight to the injured worker’s testimony about noise level than noise-level studies (called “dosimetry readings”) offered by the employer.

The Court affirmed the decision of the WCJ, finding that the testimony of the injured worker, without more, if believed by the WCJ, was sufficient both for the timing of the noise exposure, as well as the level of exposure. The Court noted that the dosimetry readings offered by the employer were not done on the person of the injured worker, nor were they done every day in every area, thus, the dosimetry readings did not prove to what extent the injured worker was actually exposed.

November 17, 2010

Utilization Review Petition in PA Workers’ Comp Allows New Evidence

When either party to a PA workers’ compensation case wants an opinion on whether medical treatment is reasonable and necessary (and this is usually requested by the workers’ comp insurance carrier, rather than the injured worker), the procedure is to file a Request for Utilization Review (UR).

The Pennsylvania Bureau of Workers’ Compensation then assigns a Utilization Review Organization (URO) randomly from a list. Following submission of records, and frequently a personal statement from the injured worker, the URO issues a Utilization Review Determination. The party against whom the URO finds has the right to appeal, by filing a Petition for Review of Utilization Review Determination.

This Petition will be assigned to a Workers’ Compensation Judge (WCJ). The litigation of a Petition for Review of Utilization Review Determination is called a “de novo” proceeding. That translates to, roughly, “from the start.” In this situation, it means the parties are not limited to the evidence before the URO; instead, the parties can submit whatever evidence to the WCJ that they desire.

Previously, in 2005, the Commonwealth Court of Pennsylvania decided the matter of United States Steel Corporation v. Workers’ Compensation Appeal Board (Luczki), holding that it is an “unreasonable contest” when a workers’ compensation insurance carrier appeals a UR Determination without “contrary medical evidence” in its possession at the time the Petition for Review of Utilization Review Determination is filed.

Recently, the Commonwealth Court of PA had to address this issue a step further in The Road Toad, Inc. v. Workers’ Compensation Appeal Board (McLean). Here, there was no dispute that the PA workers’ comp insurance carrier did not have contrary medical evidence in its possession when it appealed a UR Determination, but obtained an Independent Medical Examination (IME) to support its position AFTER the Petition for Review of Utilization Review Determination was filed.

The WCJ granted the PA workers’ comp insurance carrier’s Petition, but the Workers’ Compensation Appeal Board (WCAB) reversed. The WCAB concluded that the WCJ could not base his decision on the results of the IME, because, under Luczki, that evidence had to be in the insurance carrier’s possession before the appeal, and it was not.

Upon further appeal, the Commonwealth Court of Pennsylvania reversed the WCAB, and reinstated the decision rendered by the WCJ. Whether or not there was an unreasonable contest has no relevancy as to whether or not the testimony of the IME physician was admissible. Since a Petition for Review of Utilization Review Determination is a de novo proceeding, the WCJ was correct to consider the results of the IME, and the Petition was properly granted, said the Court.

November 9, 2010

PA Workers Comp and Retirement – Again?

The impact of pensions and “retirement” on PA workers’ compensation cases seems to be a frequent issue visited by the Commonwealth Court of Pennsylvania. Just last month, we told you about the decision in City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson) [Where the Court found that a “disability” pension does not create a presumption that an injured worker has voluntarily left the work force, while a “retirement” pension does].

Now, the Commonwealth Court of Pennsylvania has decided the Day v. Workers’ Compensation Appeal Board (City of Pittsburgh) case and further complicated the matter. A basic reading of the case could be consistent with the decision in the Robinson case. In Day, the Court found the injured worker took a “regular” pension from the employer, and applied for (and received) Social Security benefits. Further, the Court found that the injured worker testified he was capable of some kind of work, but he was not looking for work. In this case, unlike in Robinson, the Court found the injured worker did retire (and, as such, his workers’ compensation benefits should be suspended).

The problem is what does not appear in the case (and we only know this from the workers’ compensation attorney who litigated the case before the Commonwealth Court of Pennsylvania). The Social Security “benefits” being received by the injured worker were DISABILITY benefits, not RETIREMENT benefits, as the Court made it sound. Also, the pension at issue was not a regular (old age) pension, but a DISABILITY pension. Based on the true facts of the case (which, again, do not appear in the written opinion), one would think the same result should have been reached as in Robinson, denying the Petition for Suspension.

Once again, we are cast into a very murky area when it comes to pensions, Social Security Benefits, retirement and workers’ compensation in PA. These cases seem to vary depending on the facts, but what seems consistent is the complicated nature of the issue, and the uncertainty of the results.

October 13, 2010

Modification in PA Workers’ Comp, Based on IRE, Does Not Require Job Availability Shown

Back in October, 2009, we noted that the Supreme Court of Pennsylvania accepted the appeal (or, as formally said, “accepted allocatur”) in the matter of Diehl v. Workers’ Compensation Appeal Board (I.A. Construction).

This is the case where the Commonwealth Court of Pennsylvania first found that a PA workers’ compensation insurance carrier had to show job availability if a change of disability status is requested (changing from total disability to partial) as a result of an Impairment Rating Evaluation (IRE), if the IRE is not requested within 60 days of the expiration of 104 weeks of total disability benefits. An “en banc” (all of the Judges on the Court, rather than just the usual panel of three) decision by the Commonwealth Court reversed the Court’s initial decision, and found that no job availability need be shown in this situation.

The Supreme Court of PA recently affirmed the en banc decision of the Commonwealth Court of Pennsylvania. According to the PA Supreme Court, the crucial element is that “impairment” and “disability” are two very different things. Since the PA Workers’ Compensation Act refers only to the “impairment rating” (in this Section of the Act), and does not mention disability, the Court concluded that the Legislature did not intend to make the earning power of an injured worker an issue in IRE cases; instead, the issue in an IRE case is simply the injured worker’s degree of impairment. As such, there is no need for the PA workers’ compensation insurance company to present evidence on job availability to get a modification of workers’ comp benefits as a result of an IRE.

October 1, 2010

Taking Pension Not Necessarily “Retiring” in PA Workers’ Comp

**Update - On April 4, 2011, The Supreme Court of Pennsylvania accepted appeal in the Robinson case. Therefore, what we have written here about the status of the law in Pennsylvania may change. Stay tuned for more details!**

In this blog, we have addressed the consequences of “retirement,” as it affects PA workers’ compensation cases, on several occasions. As far as we could tell, taking a pension from an employer led to a finding that an injured worker had “retired,” triggering the draconian consequences of placing the Pennsylvania workers’ comp benefits in jeopardy. Specifically, we addressed the Hensal case, which seemed to suggest the act of simply taking a pension created a presumption that an injured worker had “retired,” or, in PA workers’ comp language, had voluntarily withdrawn from the labor market.

Recently, however, The Commonwealth Court of Pennsylvania issued a decision in City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson). While this decision may have made a complicated issue even more convoluted, it also sprinkled in a desperately needed dose of reality and compassion for the injured worker. In essence, this decision guided us on how to determine when an injured worker is “retired.”

In this case, the injured worker was performing light duty work for her pre-injury employer, until the employer stopped making such work available to her. At that point, the injured worker filed for a disability pension. The employer then (heart of gold these employers have) filed a Petition to Suspend PA workers’ comp benefits, because they felt the taking of the pension meant the injured worker had voluntarily withdrawn from the labor market.

The Workers’ Compensation Judge (WCJ) denied the Suspension Petition, finding that the injured worker was forced into retirement by her employer, and that she did then continue to look for work after the “retirement” (though the record showed Ms. Robinson made only one trip to a local job center long after the “retirement” and looked at some other jobs, applying for none). Since the burden of proof then shifted to the employer to show jobs were available to Ms. Robinson, and the employer failed to meet this burden, the WCJ denied the Petition for Suspension. On appeal, the Workers’ Compensation Appeal Board (WCAB) affirmed the decision of the WCJ.

Upon further appeal, the Commonwealth Court of PA also affirmed. The Court found the issue to be whether the injured worker had actually “retired.” If so, then the standard discussed in our previous blog entries was to be used (There would be a presumption that the injured worker voluntarily withdrew from the labor market, so the burden of proof would be on the injured worker to show either that he or she is disabled from ALL employment, or that he or she is continuing to look for work). On the other hand, if the injured worker had not retired, then the burden of proof remained on the employer to show there was work available within the injured worker’s physical restrictions.

In examining the situation of Ms. Robinson, the Court saw that she filed for a disability pension, rather than a retirement pension, noting that the disability pension only stated that she was not capable of her pre-injury job (not that she was not capable of any job). Ultimately, the Court found that the employer failed to prove Ms. Robinson intended to “terminate her career” by retiring. Therefore, there was no presumption, and employer was required to show job availability (which the employer did not). Note, though, that three Judges on the Court dissented from the majority view, and would have granted the Suspension Petition.

If this sounds complicated to you, join the club. These issues get very thorny and vary widely depending on the facts in each case. Injured workers often ask us when they need to obtain a PA workers’ comp attorney. It is situations like these, where an injured worker may take an action, seemingly totally unrelated to the workers’ compensation case, that makes us advise injured workers to have an attorney as soon as possible.

September 23, 2010

Compromise & Release Settlement in PA Workers’ Comp Not Enforceable Until Granted by Workers’ Compensation Judge

When an injured worker in PA wants to settle his or her Pennsylvania workers’ compensation claim in exchange for a lump sum of money, the process generally used is the “Compromise & Release Agreement.” This type of workers’ comp settlement is voluntary between the parties. A Compromise & Release can only take place when agreed to by both the injured worker and the PA workers’ comp insurance carrier.

As we have noted in a previous blog entry, a Compromise & Release Agreement is not final until it is actually approved by a Workers’ Compensation Judge (WCJ). The law requires that a WCJ determine whether the injured worker understands and accepts the terms and conditions of the Compromise & Release Agreement. Until the approval of the WCJ is obtained, either party may back out of the Agreement.

The limits of this theory were recently tested before the Commonwealth Court of Pennsylvania in the case of McKenna v. Workers' Compensation Appeal Board (SSM Industries, Inc. and Liberty Mutual Insurance Co.). In this case, the parties agreed to settlement terms at a mediation (a settlement conference with a WCJ, usually not the WCJ hearing the case). A Compromise & Release Agreement was signed by both parties.

At the hearing before the WCJ to approve the Compromise & Release Agreement, however, the employer demanded that the injured worker agree never to seek re-employment with employer. The injured worker refused to agree to this new term, and the Compromise & Release Agreement was not approved (since it was no longer agreed to by the parties).

The injured worker then filed a Petition for Penalties, alleging the employer violated the Pennsylvania Workers’ Compensation Act by failing to proceed with a Compromise & Release Agreement once the Agreement was signed and completed. The WCJ granted the Petition for Penalties, but the Workers’ Compensation Appeal Board (WCAB) reversed.

On appeal, Commonwealth Court of PA agreed with the WCAB that the WCJ erred by granting the Petition for Penalties. The Court found that employer did not violate the Pennsylvania Workers’ Compensation Act, since a Compromise & Release Agreement is not final until it is approved by a WCJ, a step missing from the facts in this case. The Court confirmed that until a WCJ approves a Compromise & Release Agreement, either party may withdraw from the agreement without penalty.

September 13, 2010

Injured Worker in PA Entitled to Reinstatement of Workers’ Comp Benefits When Earnings Again Lost Due to Work Injury

Under the Pennsylvania Workers’ Compensation Act, as that set of laws has been interpreted by Courts in Pennsylvania, there has been some confusion regarding when an injured worker can be reinstated to total disability workers’ compensation benefits. For example, an injured worker who returns to light duty work with the pre-injury employer, and is later laid off from the light duty job, is entitled to a reinstatement to total workers’ comp benefits. However, the question remained whether the same injured worker would lose this ability to obtain reinstatement if he or she leaves the pre-injury employer (like for a better or higher paying job).

This situation was faced squarely in Bufford v. Workers’ Compensation Appeal Board (North American Telecom), decided by the Supreme Court of Pennsylvania on August 17, 2010. In this case, the injured worker returned to light duty work with the pre-injury employer. He then left the pre-injury employer for a higher paying, less physical, job with another employer. A few years later, Mr. Bufford was laid off from the new employer.

The Workers’ Compensation Judge (WCJ) denied the Petition to Reinstate Benefits, finding that Mr. Bufford failed to prove there was a change (a worsening) in his condition, and his loss in earnings stemmed solely from economic reasons (rather than related to his disability). The WCJ even recognized the case would be different if the injured worker had remained at work with the pre-injury employer. On appeal, both the Workers’ Compensation Appeal Board (WCAB) and the Commonwealth Court of Pennsylvania affirmed the decision.

In a refreshing opinion, the Supreme Court of Pennsylvania lent some sanity, logic and compassion to the equation. In reversing the Commonwealth Court of Pennsylvania, the Supreme Court found it absurd that the injured worker should be punished simply for seeking better employment. The Court clarified the injured worker’s burden of proof in a Petition to Reinstate is simply to prove that his earning power is again affected by his work injury, and that his work-related disability continues. The burden then shifts to the workers’ compensation insurance carrier to prove that the loss in earnings is not caused by the work injury. There was no requirement that the injured worker prove a change, or worsening, in his condition.

The Supreme Court of Pennsylvania found that the injured worker here met his burden. The workers’ compensation insurance carrier then failed to carry its burden opposing reinstatement. Specifically, the defendant failed to prove the claimant showed “bad faith” by rejecting available work. As such, the Court found the reinstatement must be granted.

September 2, 2010

Injury Outside PA Can Be Compensable Under PA Workers’ Comp Act

A work injury is covered by the Pennsylvania Workers’ Compensation Act when the injury takes place in PA. However, even when a work injury occurs outside Pennsylvania, there are times PA has “jurisdiction” to hear the case.

One of those situations when PA workers’ comp laws can apply to a work injury taking place in another State is when the injured worker’s employment is “principally localized” in PA. Recently, the Commonwealth Court of Pennsylvania addressed what “principally localized” means in John D. Williams v. Workers’ Compensation Appeal Board (POHL Transportation).

In this case, Mr. Williams, who lives in PA, was hired by a trucking company in Ohio. The trucking company had no offices or facilities in Pennsylvania. Mr. Williams’ mileage log showed that 38% of his mileage was within Pennsylvania, 32% was in Ohio and the remaining 30% was spread over 19 different States. The injury took place in Vermont.

The Workers’ Compensation Judge (WCJ) found that PA had jurisdiction and granted the Claim Petition. The Workers’ Compensation Appeal Board (WCAB) reversed, finding that Mr. Williams did not primarily work in PA, because the employer was located in Ohio, Mr. Williams was hired in Ohio and all assignments came from Ohio.

On appeal, the Commonwealth Court of PA reversed the WCAB and reinstated the granting of the Claim Petition as found by the WCJ. The Court found that the burden faced by Mr. Williams in this situation was to show that he was domiciled in PA and that “a substantial part” of his working time for employer was within PA. He did not have to show the work was “primarily” in PA.

Defendant argued that 38% (the time Mr. Williams worked in PA) could not be considered “a substantial part” of the working time, as 62% of the work was in a different State. The Court explained that the burden is not to show the work was primarily, or even mostly, in PA, but just to show it was “substantial.” Here, more than a third of the work was in PA, and more work was within PA than any other State. There was no argument that Mr. Williams lived in Pennsylvania. As such, the burden was met for jurisdiction to be in PA.

August 20, 2010

IME More Than Six Months Old Still Valid in PA Workers’ Comp

Before Labor Market Surveys (LMS)/Earning Power Assessments (EPA), workers’ comp insurance carriers in PA used to actually have to prove a specific job was available to an injured worker in order to modify or suspend workers’ compensation benefits. This changed in the 1996 amendments to the Pennsylvania Workers’ Compensation Act, but any injured worker who was hurt before the amendments took place continues to fall under the “Old Act.”

In those cases, and even in LMS/EPA cases these days, the litigation starts with an Independent Medical Examination (IME), better, and more accurately, known as a “Defense Medical Examination.” Once some doctor releases the injured worker to some kind of work, the workers’ comp insurance carrier can start the vocational process (whether that be LMS/EPA, or the “Old Act” job referrals). But, when is a medical release too old, or stale, to be used?

In Verizon Pennsylvania, Inc. v. Workers’ Compensation Appeal Board (Guyders), the Commonwealth Court of Pennsylvania addressed this issue. This was an “Old Act” case, so the injured worker was sent on 73 job referrals (yes, you read that right, 73 – apparently, the workers’ comp insurance company does not know the meaning of the word “overkill.”)

The workers’ compensation insurance carrier filed a Petition to Modify or Suspend, based on the 73 job referrals. All were approved by the IME physician, who saw the injured worker, just one time, in 2003. Over the time from 2003 to 2006, the 73 jobs were referred to the injured worker. The vocational expert hired by the injured worker said a medical examination becomes outdated in six months to a year. The Workers’ Compensation Judge (WCJ) found both Claimant and her vocational expert credible, and dismissed any job referrals made more than six months after the date of the IME. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

On appeal, the Commonwealth Court of PA reversed. Though the Court agreed the WCJ is the ultimate finder of fact (and determiner of credibility), the Court then, in effect, dismissed the WCJ’s determination of credibility regarding the injured worker’s vocational expert. The Court found that there is no standard that an IME is outdated or stale after six months, and that an opinion of a vocational counselor otherwise was outside his scope of expertise.
Respectfully, we must disagree. The opinion of the claimant’s vocational counselor was offered not as a medical expert, but as a vocational expert. If that opinion was that a medical examination needs to be within six months to a year of the job referrals, in his vocational opinion, that, to us, is a valid vocational expert’s opinion. Once found by the WCJ to be credible, we believe, the Court had no right to usurp the authority of the WCJ in this respect. The Court also chided the WCJ for taking the six month end of the statement, when the vocational expert said six months to a year. Again, the law in PA is clear that a WCJ can accept the testimony of any expert, in whole or in part. It is bad enough the legislature appears determined to narrow the workers’ comp system unfairly in PA, for the Courts to follow suit is a real shame.

August 2, 2010

Review Petition to Add New Injury Barred in PA Workers’ Comp After Three Years

In an earlier blog entry, we discussed the 2009 decision by the Supreme Court of Pennsylvania in Cinram Manufacturing v. Workers’ Compensation Appeal Board (Hill). This case discussed the procedure for amending a Notice of Compensation Payable (NCP).

The Court, in Cinram, decided that a “corrective amendment” (a condition which was present at the time of the injury and was erroneously left off the NCP) was to be treated differently than a “subsequently-arising” or “consequential” condition (a diagnosis not present at the time of the injury, but rather developed after the date of the injury). In the former, a Workers’ Compensation Judge (WCJ) can amend the NCP at any time any type of Petition is being litigated. On the other hand, in the latter, the injured worker must actually file a Petition to Review to achieve an amendment to the NCP.

An issue left open in Cinram was the appropriate “statute of limitations” in either of these situations. This issue has now been addressed, by the Commonwealth Court of Pennsylvania, in Fitzgibbons v. Workers’ Compensation Appeal Board (City of Philadelphia). In this decision, the Court found there to be no difference between the two situations for statute of limitations purposes.

Whether the requested amendment to the NCP is a “corrective amendment” or a “subsequently-arising” or “consequential” condition, it now appears the injured worker must file their Petition within three years of the date of the most recent payment of workers’ compensation wage loss benefits. Failure to file a Petition within those three years may make such a Petition then barred in the future.

For the injured worker who does the right thing, and goes back to work, perhaps at modified or light duty, this may represent a trap of sorts. For example, Ms. Fitzgibbons was injured in 1997, and went back to work (at no loss in wages) in 1998. The workers’ compensation insurance carrier accepted the injury only as “epicondylitis of the left elbow.” In 2002, Ms. Fitzgibbons filed Petitions to Review (alleging she also hurt her neck, low back, left hip, leg and knee in the 1997 injury), and Reinstate (alleging she was now disabled by all of these injuries).

The Court found that her Petition to Review must fail, as she waited more than three years from the date of the last payment of compensation to file the Petition. So, while the Petition to Reinstate was timely (filed within the 500 week allotment), it too must fail, because the injury causing the disability was not that accepted by the NCP. Yet another example of how the unwary can fall victim due to the intricacies of the PA Workers’ Compensation Act.

July 20, 2010

PA Workers’ Comp Judge Agrees Armed Robbery is “Abnormal Working Condition” in Pennsylvania; Employer Appeals

Some time ago, we made a brief deviation from our normal course of not blogging about own active cases, to discuss a liquor store clerk who was robbed at gunpoint. The PA Liquor Control Board (LCB) denied the claim, stating that being robbed at gunpoint was not an “abnormal working condition” for a PA LCB clerk (remember that the next time you think of stepping into a State Store in Pennsylvania – armed robbery is simply accepted as a normal course of a day by management). We filed a Claim Petition on the clerk’s behalf and litigated the case.

We are pleased to report that the Workers’ Compensation Judge (WCJ) did not buy Defendant’s argument, and did not believe that society has degraded far enough such that a clerk can expect armed robbery on his or her normal day at work. In granting our Claim Petition, the WCJ rejected the Defendant’s attempt to expand the Commonwealth Court of Pennsylvania’s disastrous decision in of McLaurin v. Workers’ Compensation Appeal Board (SEPTA), wherein the Court, in its infinite wisdom, found that a SEPTA driver’s normal workday includes being assaulted by a gun-wielding teen (sending the message, as we understand it, that anyone foolish enough to step on a SEPTA vehicle can expect to face such consequences).

Undaunted, however, the PA LCB has filed an appeal with the Pennsylvania Workers’ Compensation Appeal Board (WCAB). It appears the PA LCB’s argument is that the WCJ was incorrect and Pennsylvania liquor stores are just as deadly as SEPTA vehicles (how very proud they must feel while making these arguments). We find it amazing, not to mention disheartening, that our own governmental agencies would be stooping to such disgraceful antics to deny a case. Rather than address what they clearly view as a “normal working condition,” perhaps by improving security methods, the PA LCB instead is trying to use its stubborn ignorance and incompetence as a basis to deny an injury to one of its own employees. How can one put any word other than “disgraceful” on that?

July 9, 2010

Jobs Need Not Be Available For Modification in PA Workers’ Comp

**Update - Appeal accepted by the Supreme Court of Pennsylvania on April 27, 2011 - Stay tuned for more details**

Years ago, before the 1996 amendments to the Pennsylvania Workers’ Compensation Act (Known as Act 57), a workers’ comp insurance company in PA had to prove that work was actually open and available to an injured worker in order to reduce or stop the payment of workers’ compensation benefits. This was known as the “Kachinski” standard, after the Pennsylvania Supreme Court decision in Kachinski v. Workers’ Compensation Appeal Board (Vepco Constr. Co.), decided in 1987. This was discussed in previous blog entries.

One of the more dangerous additions in those changes to the Act in 1996 was the invention of the “Earning Power Assessment” (EPA)[Also known as a “Labor Market Survey” [LMS]]. The EPA, or LMS, was to take the place of actual job referrals. A vocational counselor would be hired by the workers’ comp insurance carrier to go out and find job openings, and prepare the EPA/LMS. This document was to serve as an estimate of the jobs which exist in the geographic area in which the injured worker resides.

A question left open since the invention of the EPA/LMS was the impact of whether the job was actually available to the injured worker. A recent case before the Commonwealth Court of Pennsylvania, Phoenixville Hospital v. Workers’ Compensation Appeal Board (Shoap), addressed this very issue.

In that case, a vocational counselor located five jobs that were open as of the date he found them, and he prepared the EPA/LMS. The injured worker received the EPA/LMS several weeks later and immediately applied for all of the jobs. The injured worker received no offers of employment from any of the five jobs. The Workers’ Compensation Judge (WCJ) found the IME doctor and the workers’ comp insurance carrier’s vocational counselor credible, but denied the Petition to Modify, because the applications made by the injured worker showed the jobs were not available to her. The Workers’ Compensation Appeal Board (WCAB) affirmed.

The Commonwealth Court of Pennsylvania, however, reversed the decision of the WCJ, and granted the Petition to Modify. The Court found that an EPA/LMS is just an estimate of earnings. The fact the jobs were not open weeks later, when the injured worker applied, is irrelevant. Other, similar, jobs, said the Court, would replace those that were then filled.

Also, the injured worker failed to look for employment on her own, outside of those jobs in the EPA/LMS. Therefore, the Court found that the injured worker could not rebut the fact that jobs were open and available to her at the time the EPA/LMS was created.

The one good thing in the decision is contained within Footnote 12. There, the Court noted that one position identified in the EPA/LMS was still open and available when the injured worker applied. The injured worker did not get a job offer as a result of her application. The Court admitted that this position was not “available” to the injured worker, and could not form the basis of a Modification Petition.

Overall, this decision highlights the importance of having an experienced PA workers’ compensation attorney on your side BEFORE there is any litigation. Timing is critical in cases like these, and passage of time is something an attorney may not be able to fix once it happens. Once the Petition to Modify is filed by the workers’ comp insurance carrier, it may be too late to prevent a bad decision.

July 1, 2010

Notice of Denial Accepts Case in PA Workers’ Comp

In a previous blog posting, we discussed the case of Armstrong v. Workers’ Compensation Appeal Board, decided by the Commonwealth Court of Pennsylvania in 2007. This case first allowed a PA workers’ compensation insurance carrier to use a Notice of Denial (NCD) to “accept” a workers’ comp case. As attorneys for injured workers in PA, we hoped this case would be viewed narrowly, if not reversed, by future Court decisions.

Unfortunately, the Commonwealth Court of Pennsylvania, in the case of Forbes Road CTC v. Workers’ Compensation Appeal Board (Consla), has now expanded this theory. No longer does a PA workers’ comp insurance carrier have to even issue a Temporary Notice of Compensation Payable (TNCP), then revoke the TNCP, to use an NCD to accept a case (as it was done in Armstrong). In Consla, the Court specifically stated that, “we hold an employer may properly issue an NCD to accept a claimed work injury for medical purposes only.”

As we felt after reading the Armstrong decision, we can only wonder why the Pennsylvania Bureau of Workers’ Compensation would have gone to the trouble of developing a specific form called a “Medical Only Notice of Compensation Payable,” which was designed to be issued in this very type of case, if an NCD could simply be used. Oh, and we also wonder how a Court can decide that a Notice of DENIAL can be used to ACCEPT a case. Silly us, we thought the Pennsylvania Legislature was charged with making laws, leaving the Courts to simply interpret them.

June 17, 2010

Employee Injured in Employer’s Parking Lot Entitled to PA Workers’ Comp

As we have discussed in several previous blog entries, an injury at work in PA must happen in the scope and course of employment to be compensable under the Pennsylvania Workers’ Compensation Act. Often, this is the issue in dispute when an employee is injured in a parking lot, either coming to, or leaving, work.

In ICT Group v. Workers’ Compensation Appeal Board (Churchray-Woytunick), recently decided by the Commonwealth Court of Pennsylvania, a worker slipped and fell in a parking lot as she was preparing to leave the premises for lunch. Since the employee was required to take a lunch break, was allowed to leave the premises, the parking lot was used by the employees and the injury took place only about ten feet from the employer’s door, the Court found the injury was within the scope and course of employment and workers’ comp benefits were awarded.

These cases are always very “fact-specific,” and there are many different ways these types of cases go. Yet another reason that injured workers should be sure to select attorneys with extensive experience in PA workers’ compensation matters.

June 8, 2010

Worker Injured in Pre-Employment Screening Not an “Employee” at Time of Injury; PA Workers’ Compensation Benefits Denied

While there is no minimum time a worker must be employed before the worker qualifies for workers’ compensation coverage in Pennsylvania, the worker must actually be “employed” at the time of the injury. This means there must be both an offer and an acceptance of employment, before the work injury takes place.

In Moberg v. Workers’ Compensation Appeal Board (Twining Village), a recent decision of the Commonwealth Court of Pennsylvania, a prospective employee was injured while getting a tuberculin test. Since this test must have been passed before an offer of employment could have been made, the Court found that, at the time of the test, the injured worker was not actually an “employee” yet. As such, PA workers’ compensation benefits were denied.

This case does bring up the fact that an employee is immediately covered under the Pennsylvania Workers’ Compensation Act, as soon as employment begins. We have seen several cases over the years where an employee is hurt on the first day of work. In those cases, there is no doubt the injured worker is entitled to PA workers’ comp benefits. The key, as noted in Moberg, is that the employment relationship must have actually started before the injury takes place.

May 27, 2010

Notice of Ability to Work in PA Workers’ Comp is “Prompt” Two Months Late

As we have discussed in a previous blog entry, the PA Workers’ Compensation Act requires that a Notice of Ability to Return to Work be served on an injured worker (and his or her attorney), before the workers’ comp insurance carrier can move to modify or suspend benefits.

Specifically, the Act states, “If the insurer receives medical evidence that the claimant
is able to return to work in any capacity, then the insurer must provide prompt written notice, on a form prescribed by the department, to the claimant . . . “ One of the interesting words chosen in this law is “prompt.”

The Commonwealth Court of Pennsylvania, in Melmark Home v. Workers’ Compensation Appeal Board (Rosenberg), decided in 2008, held that a Notice of Ability to Return to Work sent five and a half months after the workers’ comp insurance carrier received the information was “stale,” and was not valid (because it was not “prompt”). That Court also noted that the real key to whether a Notice of Ability to Return to Work is “prompt” enough is the impact on the injured worker.

Recently, the Commonwealth Court of Pennsylvania again addressed this issue, in Kleinhagan v. Workers’ Compensation Appeal Board (KNIF Flexpak Corp). In this case, the Notice of Ability to Return to Work was sent less than two months after the medical information was received by the insurance carrier, but before the vocational interview was conducted, before modification or suspension of benefits was sought and before a Petition to Modify or Suspend was filed.

The Court found the Notice of Ability to Return to Work timely in this situation. The delay of less than two months did not cause the medical information to become “stale.” The fact that nothing was done prior to the Notice of Ability to Return to Work being served also kept the injured worker from being prejudiced in any way. Given the entirety of circumstance in the matter, the Court found the written notice to be “prompt” and consistent with the Act.

May 14, 2010

Claim Petition in PA Workers’ Comp Denied When Doctor Says Injured Worker’s Intoxication Was Major Factor in Work Injury

Generally speaking, when an employee in Pennsylvania is injured while performing the duties of his or her job, the employee is entitled to PA workers’ compensation benefits. One of the exceptions to this rule, however, is when “the injury or death would not have occurred but for the employe’s intoxication.” This is one of the “affirmative defenses” available to a PA workers’ comp insurance carrier. The defendant bears the burden to prove that the intoxication caused the injury.

Recently, the Commonwealth Court of Pennsylvania dealt with whether the defendant’s medical expert had to actually state that the injury would not have occurred “but for” the intoxication. In Thomas Lindstrom Co., Inc. v. Workers’ Compensation Appeal Board (Braun), the employee fell off a steel beam, six to eight inches wide, and suffered very serious injuries, including severe head trauma.

A Notice of Temporary Compensation Payable (TNCP) was issued, and workers’ comp benefits were started. However, when lab results showed that the injured worker had a blood alcohol level of around .28 at the hospital (Far beyond the .08 level which constitutes drunken driving in PA), the claim was then denied by issuance of a Notice of Denial (NCD).

Claimant filed a Claim Petition, for the injury itself, and a Petition to Reinstate, alleging the TNCP was not revoked in a timely fashion. The parties agreed that the work injury happened, and that the injured worker was totally disabled as a result of the injury. Only two issues remained for decision: whether the claim was barred due to intoxication, and whether the revocation of the TNCP, and the issuance of the NCD, was timely.

The Workers’ Compensation Judge (WCJ) credited the testimony of defendant’s medical expert, who stated, “without question, that this person was severely intoxicated by
alcohol and that level of alcohol was a major and very substantial contributing
factor to his unfortunate accident.” Based on this testimony, the WCJ denied the Claim Petition. The Petition to Reinstate was also denied, as the WCJ found the revocation timely.

On appeal, the Workers’ Compensation Appeal Board (WCAB) agreed the revocation of the TNCP was timely (and that the Petition to Reinstate was properly denied), but reversed with regard to the intoxication defense. The WCAB stated that the proper standard for this affirmative defense was to prove the injury would not have happened “but for” the intoxication, and defendant’s medical expert did not give this opinion.

The Commonwealth Court of Pennsylvania, however, reversed the WCAB, and agreed with the WCJ that the Claim was barred by intoxication. The Court found that, in Pennsylvania workers’ compensation cases, there has never been a need for the use of “magic words,” and that the testimony of defendant’s expert, when viewed as a whole, met the standard required to prove that the intoxication was, in fact, the cause of the injury.

As to the Petition to Reinstate, the Court affirmed the WCAB and the WCJ, finding that a denial of the Petition was appropriate. The Pennsylvania Workers’ Compensation Act requires that a TNCP must be revoked no later “than five (5) days after the last payment.” The term “last payment” though, said the Court, does not mean the date the check was received. Rather, that term means “within five days of the end of the last payment period.”

Here, the last workers’ compensation check was received by the injured worker on February 11, 2003, but the check was for the two-week period ending on February 20, 2003. Though the TNCP was revoked on February 21, 2003, more than five days after the injured worker received the last workers’ comp check, the revocation was within five days of the last day of the pay period, so the revocation and denial was timely.

April 19, 2010

Notice of Ability to Return to Work Required to Suspend or Modify Workers’ Comp Benefits in PA

There is a process in PA when a workers’ comp insurance carrier wants to modify or suspend the workers’ compensation benefits of an injured worker. First, there must be evidence of a change in condition. Then, the insurance carrier must serve a form called Notice of Ability to Return to Work on the injured worker (with documentation regarding what type of employment the injured worker can do). Only then can the workers’ comp insurance carrier file a Petition to Modify or Suspend benefits and go before a Workers’ Compensation Judge (WCJ).

But, what if the injured worker is not capable of working at all, due to something other than the work injury? The Supreme Court of Pennsylvania faced this issue in 2000, in Schneider, Inc. v. Workers’ Compensation Appeal Board (Bey). In that case, the worker suffered an injury to his head and neck. While he was receiving workers’ comp benefits, he was stabbed in the head in a bar fight and was rendered paraplegic and brain damaged. The Court held that the workers’ comp insurance carrier did not have to show any job availability, because it would be “fruitless.” In that situation, the injured worker was completely and permanently disabled by the non-work-related injury.

More recently, the Commonwealth Court of Pennsylvania was invited to expand this theory in Wells v. Workers Compensation Appeal Board (Skinner); thankfully, the Court declined. Mr. Skinner injured his back at work, and began to receive PA workers’ compensation benefits. Since Mr. Skinner also suffered with diabetes, cardiac problems and other related health issues, the workers’ comp insurance carrier filed a Petition to Suspend benefits, under the theory of Schneider.

The workers’ comp insurance carrier presented medical evidence that, from the standpoint of his back injury, Mr. Skinner was capable of modified duty work. However, the insurance carrier’s medical expert testified that the non-work-related conditions rendered Mr. Skinner totally disabled. The insurance company also had a vocational witness testify that two modified duty jobs were offered to Mr. Skinner, but he neglected to apply for either. No Notice of Ability to Return to Work was issued.

Convinced that the Notice of Ability to Return to Work was not necessary, since Mr. Skinner was totally disabled by non-work-related causes, the WCJ granted the Petition for Suspension, in accordance with Schneider.

This decision was reversed, however, by the Workers’ Compensation Appeal Board (WCAB). The WCAB concluded that issuing a Notice of Ability to Return to Work is a prerequisite to modifying or suspending benefits. Since that was not done, the Petition must fail.

On appeal to the Commonwealth Court of Pennsylvania, the workers’ comp insurance carrier argued that the Notice of Ability to Return to Work was not required, under Schneider, given Mr. Skinner’s disability. The Court rejected this argument and affirmed the WCAB. The Court said Schneider is to be limited to the facts in that case, and read strictly. The condition of Mr. Skinner was not as clearly permanently and totally disabling as that in Schneider. As such, the general rule applies and the failure to issue the Notice of Ability to Return to Work was fatal to the Petition to Suspend.

April 9, 2010

Termination of PA Workers’ Comp Benefits Granted, Even When No Examination of All Accepted Injuries

Generally speaking, a Workers’ Compensation Judge (WCJ) is the sole determiner of credibility in PA workers’ comp matters. Testimony of any witness can be accepted, in whole or in part. Determinations of credibility by a WCJ cannot generally be overturned on appeal.

This issue was addressed by the Commonwealth Court of Pennsylvania in Stancell v. Workers Compensation Appeal Board (LKI Group, LLC). In this case, the workers’ comp insurance carrier sent the injured worker for an Independent Medical Examination (IME; more realistically referred to as a “Defense Medical Exam,” as there is usually nothing “independent” about it). That doctor pronounced the injured worker fully recovered.

Based on this opinion, the workers’ comp insurance carrier filed a Petition for Termination. To win such a Petition, the carrier must prove that the injured worker has fully recovered from the entire work injury. In that litigation, the IME doctor admitted he did not examine one of the body parts which were injured (the lower right arm). Regardless, the IME doctor testified that the injured worker had fully recovered from the entire injury (he was asked, hypothetically, if she injured her lower right arm, whether that, too, was recovered). The WCJ found this testimony credible and granted the Petition for Termination.

This decision was affirmed by the Workers’ Compensation Appeal Board (WCAB). The Commonwealth Court of Pennsylvania also affirmed, finding the testimony of the IME doctor was “substantial competent evidence,” supporting the decision rendered by the WCJ. The Court noted that the injured worker’s treating doctor did not testify the lower right arm caused her any problem, and the IME doctor testified the injured worker made no complaints regarding her arm.

My only issue with this is that an injured worker is supposed to have no burden to prove anything in a Petition for Termination; yet, the Court suggests perhaps there would have been a different result if the injured worker’s doctor had testified differently. It appears as if the Court is placing a burden on the injured worker which does not belong.

April 2, 2010

PA Workers’ Comp Check is Only A “Conditional Payment,” So A “Stop Payment” Means Workers’ Compensation Was Not “Paid.”

Under Section 406.1 of the Pennsylvania Workers’ Compensation Act, an employer/insurance carrier has 21 days to investigate a workers’ compensation claim and issue appropriate documentation, either accepting (by Notice of Compensation Payable (NCP) or Agreement for Compensation) or denying (Notice of Denial (NCD)) the claim. If the employer/insurance carrier is unsure whether the claim is compensable, a Notice of Temporary Compensation Payable (TNCP) can be issued. This document can then be revoked, within 90 days, if the employer/insurance carrier wishes to deny the claim.

If an employer/insurance carrier wishes to revoke a TNCP, and deny liability, there are certain procedures which must be followed. If the procedures are not followed exactly, the TNCP can simply convert to an NCP (which cannot be revoked). One of the requirements is that a TNCP can only be revoked if the revocation is made within five days of the last workers’ compensation check.

Using magic powers which would be the envy of Merlin, the Commonwealth Court of Pennsylvania recently made this “requirement” disappear, allowing a TNCP to be revoked despite a clear violation of this provision. In Barrett v. Workers’ Compensation Appeal Board (Vision Quest National), the injured worker suffered a fractured ankle while doing her job. The workers’ comp insurance carrier issued a TNCP, along with the first check for workers’ compensation benefits.

Unbeknownst to the injured worker, the workers’ comp insurance carrier stopped payment on the check (the injured worker only learned of this when the bank notified her of the shortage in her account). Then, over a month after the TNCP was issued, and the check was sent, the TNCP was revoked and an NCD was issued.

The injured worker filed a Petition for Penalties, alleging that the workers’ comp insurance carrier violated the Pennsylvania Workers’ Compensation Act by stopping her payments. Since the TNCP was not revoked within five days of the check, the TNCP had converted into an NCP.

After litigating the matter, the Workers’ Compensation Judge (WCJ) denied the Petition for Penalties. This was affirmed by the Workers’ Compensation Appeal Board (WCAB), and then the Commonwealth Court of Pennsylvania. The Court found that a check for workers’ compensation benefits in PA is only a “conditional payment.” The payment is not truly accomplished, said the Court, until “payment of the monetary funds is actually received.” So, since the stop-payment was issued, and the check was never actually cashed, no payment to the injured worker was ever made. As such, the TNCP was revoked properly.

Aside from my obvious displeasure, that being that a workers’ compensation check now is just a fancy “IOU,” my bigger gripe is what was not addressed. The TNCP was in force for over a month before being revoked. The workers’ comp insurance carrier openly admitted that no payments were made in that time. How can there be no violation of the Act if payments were not made under an existing TNCP? At the worst, even accepting the Court’s reasoning, the Penalty should have been granted for the period during which the TNCP was in force.

March 25, 2010

Termination in PA Workers’ Comp Must Account For All Recognized Work Injuries, Whether or Not Listed on Notice of Compensation Payable

When a PA workers’ compensation insurance carrier wants to “terminate” the workers’ comp benefits of an injured worker, the insurance company must prove that the injured worker has fully recovered from his or her work injury. What constitutes the “work injury” is usually what is described on the Notice of Compensation Payable (NCP)[the document used by the insurance carrier to accept a claim]. While this is the rule, there are always exceptions.

A recent decision rendered by the Commonwealth Court of Pennsylvania, Julio Paz Y Mino v. Workers’ Compensation Appeal Board (Crime Prevention Association), dealt with the exception to the rule. After Mr. Mino was injured, an NCP was issued, describing the injury as lumbar sprain and strain. A Petition to Terminate was filed by the workers’ comp insurance carrier. The Workers’ Compensation Judge (WCJ) denied this Petition, finding the testimony of the injured worker’s doctor more credible than the doctor who performed the Independent Medical Examination (IME) for the insurance company. Though the WCJ did not formally state he was amending the NCP (nor was a Petition to Review, the Petition used to amend an NCP, filed), he noted the diagnosis rendered by the injured worker’s doctor, specifically, an aggravation of pre-existing lumbar stenosis and a lumbar radiculopathy.

The workers’ compensation insurance carrier then filed a second Petition to Terminate (Persistent little devils, eh?). Since the first WCJ did not formally amend the NCP, the second WCJ did not include the entire diagnosis found by the first WCJ. In so doing, the second WCJ found that Claimant had fully recovered and granted the Petition to Terminate.

On appeal, the Workers’ Compensation Appeal Board (WCAB) affirmed. The Commonwealth Court of Pennsylvania, however, reversed. The Court found that there was no requirement that the NCP be formally amended, or that a Petition to Review be filed in this situation (see previous blog entry on Cinram case). The WCJ made findings, which were not appealed. Since the IME physician did not state that the injured worker had fully recovered from all of the diagnoses found by the first WCJ, the Petition to Terminate must fail.

Note, too, that the Court also dealt with an issue concerning an overpayment of benefits to the injured worker. The WCJ and the WCAB found that the workers’ compensation insurance carrier was entitled to a credit for the overpayment. The injured worker claimed that there should not be a credit because the overpayment came from an administrative error, rather than a miscalculation. On this issue, the injured worker did not fare as well. The Court found the injured worker would be “unjustly enriched” by the extra payments, regardless of whether the error was administrative or a miscalculation. The workers’ compensation insurance carrier was given a credit for these payments. What is unclear is whether this credit can only be taken from future workers’ compensation benefits, or whether repayment can be sought from the injured worker (if there are no future benefits).

March 17, 2010

Utilization Review in PA Workers’ Comp Pertains Only to Physician or Provider Named, Unless Providers Acting Under Same Physician

In PA Workers’ Compensation, when the workers’ comp insurance carrier feels the treatment rendered to an injured worker is no longer “reasonable” or “necessary,” the relief is for the insurance company to file for Utilization Review (UR). When a UR is requested, the PA Bureau of Workers’ Compensation randomly assigns a Utilization Review Organization (URO) to review the treatment and decide if it is “reasonable and necessary.” Once a UR is requested, until treatment is found to be reasonable and necessary, the workers’ comp insurance carrier does not have to pay for the treatment under review.

When a UR is requested, the workers’ comp insurance carrier must specifically state both the provider under review and the treatment being challenged. A UR only pertains to the provider named, and the treatment as issue. In other words, if a UR finds treatment with a specific orthopedic surgeon not reasonable or necessary, the workers’ comp insurance carrier no longer is responsible for the treatment of that doctor; however, that does not mean the workers’ comp insurance carrier is not responsible for treatment with a different orthopedic surgeon. The workers’ comp insurance carrier would have the obligation to file another UR request, and the process would start all over.

But, what if the provider is not a physician at all, but a physical therapist working under the direction of a physician at the same facility? This was the issue presented to the Commonwealth Court of Pennsylvania in MTV Transportation v. Workers’ Compensation Appeal Board (Harrington).

In this case, Ms. Harrington injured her neck and lower back when she was involved in a car accident while doing her job. As part of her treatment, Ms. Harrington was getting physical therapy. The physical therapist who rendered the treatment was acting under the supervision of a physician at the facility, who was the doctor prescribing the treatment. The workers’ comp insurance carrier filed for UR, naming the therapist who was directly providing the treatment. This led to a finding that the treatment with that named therapist was unreasonable and/or unnecessary.

Ms. Harrington then started treating with a differed therapist at the same facility, working under the direction of the same physician. The workers’ comp insurance carrier then argued it did not have to pay for this treatment, since it was rendered under the guidance of the same doctor, at the same facility. In the resulting litigation, the Workers’ Compensation Judge (WCJ) disagreed with the workers’ comp insurance carrier, and said a UR is only binding on the provider named in the UR request, so treatment with another therapist is not barred by that UR determination. On appeal, the Workers’ Compensation Appeal Board (WCAB) affirmed.

The Commonwealth Court of Pennsylvania disagreed, but affirmed anyway. The Court found that the workers’ comp insurance carrier could have requested a UR by naming the doctor prescribing physical therapy and the facility where the injured worker received that therapy. Had the workers’ comp insurance carrier worded the UR that way, the Court would have found the treatment prescribed by that physician to be unreasonable and/or unnecessary, regardless of which therapist was actually rendering the treatment. However, the workers’ comp insurance carrier instead named only the therapist who rendered the treatment. As such, the Court agreed the UR only pertained to that therapist.

Note that this decision, arguably, pertains only where the injured worker is getting treatment at a facility where the physical therapist, and the physician who prescribes the treatment, both work. In other words, this decision may not be applicable where a doctor prescribes therapy and the injured worker finds a physical therapy facility having no relation to the prescribing doctor.

March 4, 2010

Car Accident Victim Not Entitled to PA Workers’ Comp Benefits While Injured in Route to Patient’s Home

Generally speaking, employees in Pennsylvania are not entitled to workers’ compensation benefits when the employee is injured commuting to work (known as the “Coming and Going” rule).

There are four notable exceptions to this rule. They are that the injured worker: (1) has an employment agreement which includes commuting to and from work; (2) has no fixed place of employment; (3) is hurt while on a “special assignment” for employer; or, (4) is furthering the business of the employer.

The Supreme Court of Pennsylvania, in Peterson v. Workmen’s Compensation
Appeal Board (PRN Nursing Agency), decided in 1991, has already told us that an employee of a temporary agency has no fixed place of employment. In that case, the Supreme Court said, “[a] temporary employee, who is employed by an agency, never has a fixed place of work.” The Supreme Court then concluded, “when [an] agency employee travels to an assigned workplace, the employee is furthering the business of the agency. Therefore, . . . as a matter of law, [Peterson] had no fixed place of work . . . and her injury occurred while she was in furtherance of her employer’s business.”

The Peterson decision seems hard to reconcile with a recent decision rendered by the Commonwealth Court of Pennsylvania, Mackey v. Workers’ Compensation Appeal Board (Maxim Healthcare Services). In this case, Ms. Mackey, a home health aide, injured her ribs, knee and back in a motor vehicle accident on the way to a patient’s home. The Workers’ Compensation Judge (WCJ) denied the Claim Petition filed by Ms. Mackey, under the “Coming and Going” rule. This was affirmed by the Workers’ Compensation Appeal Board (WCAB).

Despite the similarities between Ms. Mackey and the injured worker in Peterson, the Commonwealth Court of Pennsylvania affirmed the decision, finding Ms. Mackey not entitled to PA workers’ comp benefits. While Ms. Mackey did work for a temp agency, and was sent directly to a patient’s home from her own, the Court noted that Ms. Mackey worked for the same patient for a year and a half, and had no reason to believe the assignment would be ending in the near future. So, while a temp job typically would have no fixed place of employment, the facts in this case show Ms. Mackey DID have a fixed place of employment.

The Court also rejected Ms. Mackey’s argument that by going to the patient’s home in bad weather, there were “special” circumstances, and she was furthering the interests of the employer. As we discussed in a previous blog entry, the Court disposed of this argument by finding that having an employee show up at work is not a “special” circumstance, but rather a “universal” one, held by every employer.

As attorneys who represent injured workers in PA, we are troubled by this decision. A temp job, by its very nature is . . . you guessed it, temporary. As the Supreme Court of Pennsylvania held in Peterson, a temp job is a different creature, requiring different rules. The Mackey case sets a dangerous precedent. Now there appears to be an imaginary line in time when a temp employee, having no fixed place of employment, magically becomes an employee with a fixed place of employment. As lawyers, we ask for little more than certainty from the Courts; decisions like Mackey only serve to undermine such certainty, leading to additional litigation and further stretching of precious judicial resources.

February 25, 2010

Workers Comp Judge in PA Can Select Highest Wage in Labor Market Survey

As discussed in previous blog entries, back in the old days (before the 1996 changes to the Pennsylvania Workers’ Compensation Act), if a workers’ comp insurance carrier wanted to cut a claimant’s worker’s compensation benefits, the carrier had to refer the person to an actual job lead. If the job lead did not result in employment, workers’ compensation benefits continued.

In 1996, the system was changed to one more like that used for Social Security Disability. Rather than sending the injured worker to an actual job opening, at an actual employer, a vocational specialist, hired by the insurance carrier, gathers theoretical information and compiles an Earning Power Assessment (EPA, also known as “Labor Market Survey,” (LMS)).

The workers’ comp insurance carrier then can take this EPA/LMS to a Workers’ Compensation Judge (WCJ), and ask that the injured worker’s compensation benefits be modified, based on the jobs shown to be “available” in the general geographic area in which the injured worker resides.

A recent decision by the Commonwealth Court of Pennsylvania, Marx v. Workers’ Compensation Appeal Board (United Parcel Service), addressed a few aspects in this process. In the this case, the WCJ selected the highest paying job and modified the injured worker‘s benefits. The Workers’ Compensation Appeal Board (WCAB) affirmed.

On appeal, the Commonwealth Court of Pennsylvania also affirmed. The Court rejected the argument that the WCJ had to take the average wage of all of the jobs in the EPA/LMS. Rather, the Court held the WCJ can select the wage of any job the WCJ wishes, here the highest wage, since the WCJ is the final “Finder of Fact.” The Court also rejected the argument that the EPA/LMS was defective because several of the “job leads” in the EPA/LMS were either inaccurate or not available. The Court found that since the job selected by WCJ was not one of the defective ones, there was no harm. Finally, the Court said that the WCJ was correct in not considering any injuries or conditions other than those formally accepted as related to the work injury.

February 17, 2010

“Severance” Package Under Collective Bargaining Agreement Does Not Trigger “Retirement” Burden of Proof Shift in PA Workers’ Comp

We have seen in recent decisions rendered by the Commonwealth Court of Pennsylvania a trend toward punishing injured workers in PA who take any type of disability or retirement package, almost, seemingly, without regard for the reasons.

In fact, earlier this month we posted a blog entry regarding Duferco Farrell Corp. v. Workers’ Compensation Appeal Board (Zuhosky), where the Court followed this very trend. So, the decision rendered by the Court recently in Polis v. Workers’ Compensation Appeal Board (Verizon Pennsylvania, Inc.), was received as a pleasant surprise.

Here, Mr. Polis had injured his knee (and had surgery for the knee). Eventually, Mr. Polis went back to work, at a light duty job. After some period of time, the employer discontinued the light duty work, leaving Mr. Polis without a position within his physical restrictions. As we commonly see in these situations, Mr. Polis investigated what options were available to put food on his family’s table.

In addition to applying for unemployment compensation benefits, Mr. Polis also applied for, and received, an Enhanced Income Security Plan (EISP) [a form of severance package] under the collective bargaining agreement. The EISP form had checked off “retirement” and an exit interview conducted by the employer had listed the same term. While Mr. Polis testified he had looked for employment on the internet, he did not actually apply for any positions because Verizon Pennsylvania, Inc. was the only company who would employ someone doing that type of work.

Finding that Claimant had not “retired” and thus had not “voluntarily withdrawn from the labor market,” the Workers’ Compensation Judge (WCJ) ordered workers’ comp benefits reinstated (after taking credit for unemployment compensation benefits and the EISP monies). On appeal, the Workers’ Compensation Appeal Board (WCAB) affirmed.

Employer argued to the Commonwealth Court of Pennsylvania that Mr. Polis had indeed “retired,” triggering the shift of burdens. As such, since Mr. Polis was not disabled from all gainful employment, and had not conducted what the Court has previously found to be an actual job search (see previous blog entry on the Hensal case), the reinstatement must be denied.

In an unexpected turn, the Court rejected Employer’s appeal and affirmed the WCJ and WCAB. The Court said that Hensal did not apply because Mr. Polis was forced out of his job, did not take a retirement or disability pension (the EISP was solely due to the loss of the job, the Court noted) and never showed an intention to retire (the WCJ found that Employer completed the form stating “retirement,” not Mr. Polis). Since Mr. Polis did not “retire,” and “voluntarily withdraw from the labor market,” there was no shift of the burden of proof, and no requirement that Mr. Polis prove he was actually looking for work. Interestingly, the Duferco case was not even mentioned by the Court.

As you can see, workers’ compensation in PA is one of the more active areas addressed by the appellate courts in Pennsylvania. This is why our firm limits its practice to just representing injured workers in their PA workers’ comp cases. By limiting our practice to one area of law, we are able to stay in touch with legal and political developments impacting our clients. We offer free consultations, and encourage all injured workers to have experienced legal representation. Feel free to call or e-mail our offices for more information, or to schedule a consultation.

February 2, 2010

In PA, Applying for Social Security Retirement Benefits Can Stop Workers’ Compensation Benefits

As discussed in previous blog entries, for several years now, the Courts in PA have caused decisions by Pennsylvania’s injured workers to have drastic consequences beyond what an injured worker could reasonably expect.

Because of the decision in Pennsylvania State University v. Workers’ Compensation Appeal Board (Hensal), rendered by the Commonwealth Court of Pennsylvania in 2008, the simple act of filing for a pension can easily lead to a loss of workers’ comp benefits for an injured worker.

Well, don’t look now, but Commonwealth Court has struck again. Now, an injured worker who testified credibly that he is NOT retired, that he had NOT filed for a retirement pension from his employer (even though one was available), that he would go back to work if a job was available within his physical restrictions and that he filed for Social Security Retirement benefits only after the workers’ comp insurance carrier refused to reinstate his benefits, has been found by the Court to have voluntarily removed himself from the labor market, ending his entitlement to PA workers’ compensation indemnity (wage loss) benefits.

In this decision, Duferco Farrell Corp. v. Workers’ Compensation Appeal Board (Zuhosky), the injured worker suffered an injury to his knee in March, 2003. He eventually went back to work, at a modified duty job, until January 27, 2007, when he stopped working due to a worsening of his condition (and had a total knee replacement performed on January 31, 2007).

The workers’ compensation insurance carrier, in their infinite wisdom, denied a request to reinstate workers’ comp benefits. Having no other source of income at that point, and being totally disabled, on the advice of his attorney, Claimant applied for Social Security Retirement (SSR) benefits. Claimant also filed a Petition to Reinstate his workers’ comp benefits, as of January 27, 2007, when he again became totally disabled by the work injury.

In litigating the Petition for Reinstatement, Claimant presented evidence from not only his own treating doctor, but also from the Independent Medical Examiner retained by the workers’ comp insurance carrier. Both doctors agreed the work injury aggravated a pre-existing condition in the knee, resulting in the need for the total knee replacement. The workers’ compensation insurance company presented no evidence.

The Workers’ Compensation Judge (WCJ) granted the Petition for Reinstatement, and also awarded unreasonable contest attorney fees against the insurance carrier. On appeal, the Workers’ Compensation Appeal Board (WCAB) affirmed, agreeing with the WCJ that the workers’ comp insurance carrier failed to prove the injured worker voluntarily removed himself from the labor market, and that no reasonable contest was shown. Logic and justice prevailed . . . for awhile.

Upon further appeal, the Commonwealth Court reversed. The scope of appeal essentially is whether the WCJ, and/or the WCAB, committed an error of law (The WCJ is the ultimate Finder of Fact, and such findings, if supported by sufficient evidence, should not be disturbed upon appeal). Regardless, the Court found that Mr. Zuhosky voluntarily withdrew from the labor market, so the granting of the Reinstatement Petition was in error.

The Court based its decision on the fact Claimant testified that he would “like to retire” (Who wouldn’t?). Claimant did NOT testify that he has retired. Mr. Zuhosky did file for SSR benefits, and did take a pension from his union (but not his employer). The Court found that the actions of Mr. Zuhosky triggered the switch of burdens of proof, as noted in the Hensal case. To win, then, Mr. Zuhosky had to demonstrate that he was actively seeking employment or that he was disabled from all employment by his injury. Since he failed to prove either, the Court found the Petition for Reinstatement could not be granted. Having conducted a seminar on this very issue, I can safely say this is a difficult standard to meet.

A strong dissent, authored by Senior Judge Friedman, was written both logically and clearly, observing that SSR was only taken after reinstatement was refused, that there was no evidence when the union pension was taken, that Mr. Zuhosky did not take a pension from his employer (and that he testified credibly that he would return to work if possible), and that Mr. Zuhosky actually did try to go back to work briefly after the surgery. Based on all of this, Judge Friedman felt the “voluntary” withdrawal from the labor market was anything but “voluntary.”

In my view, the opinion of Judge Friedman, while not the majority, certainly reflects the truth and reality of the world in today’s economy. The majority’s view would allow the injured worker to choose between starving his or her family or having workers’ compensation benefits. The law in Pennsylvania was never intended to present an injured worker with such a cruel choice.

January 26, 2010

PA Injured Worker’s Refusal to Enter Detox for Work-Related Prescription Drugs Leads to Suspension of Workers’ Compensation Benefits

This being a free Country, a workers’ compensation insurance company in PA cannot “force” an injured worker to get any medical treatment. However, the Pennsylvania Workers’ Compensation Act permits the suspension of workers’ comp benefits if an injured worker refuses “reasonable” medical treatment (Known as a “Forfeiture” Petition). Often in those cases, the issue is whether the treatment at issue (anything from carpal tunnel release, to lumbar fusion, to total knee replacement, to epidural steroid injections) is actually “reasonable” in any particular case.

An interesting aspect of this issue was recently examined by the Commonwealth Court of Pennsylvania in Bereznicki v. Workers’ Compensation Appeal Board (Eat ‘N Park Hospitality Group). In that case, the question was whether the proposed treatment had to actually be intended to return the injured worker to gainful employment. In a decision surprising to many, the Court held that the treatment did NOT have to be designed to return the injured worker to gainful employment to lead to a suspension of benefits.

The concept of a “Forfeiture Petition” makes sense; it is designed to keep an injured worker from refusing treatment which would put the injured worker back on the job (in reality, however, I doubt many folks would truly refuse treatment that would make them better, but the insurance industry seems to disagree with me). But, to me, that is the point – the fact the injured worker could return to work.

The treatment at issue in Bereznicki was a detox program for prescription medications. There was no evidence the detox program would enable the injured worker to become employable (which makes sense, since the program would provide no treatment for the disabling injury itself).

In holding that the Workers’ Compensation Judge correctly granted the Forfeiture Petition and suspended workers’ comp benefits, the Court stated, “Although such a program would not return Claimant to her pre-injury job, her refusal of such treatment certainly increases her incapacity.”

Personally, I find that to be an odd standard to use, in what amounts to forcing a person into medical treatment. If the treatment is designed simply to cure a problem and improve function and quality of life, why is that the role of the workers’ comp insurance carrier? Should that not be the decision of the injured worker, and his or her treating doctors? Once a person is “totally” disabled, I am not aware of any math that would allow the person to become more disabled.

January 18, 2010

Notice of Ability to RTW Not Necessary in PA if Injured Worker Already Working

Under the Pennsylvania Workers’ Compensation Act, an insurance carrier cannot just stop, or even change, payments of workers’ comp benefits. Any change made by the workers’ compensation insurance carrier in PA, without permission of the injured worker, or a Workers’ Compensation Judge (WCJ), may be met with an assessment of penalties. This leads us into an examination of how an insurance carrier can try to reduce such benefits.

When a workers’ comp insurance carrier receives evidence that the medical condition of an injured worker has changed, the carrier must file a Notice of Ability to Return to Work. The law tells us that this document must be filed before the workers’ compensation carrier can file a Petition to Modify or Suspend (workers’ comp benefits), based on some wage-earning capacity.

In the case of an injured worker actually going back to work, the insurance carrier has a period of time to file a Notification of Modification or Suspension. This document sets forth the allegations regarding the wages now being earned by the injured worker. If this document is not challenged in court by the injured worker, the effect is the same as if the injured worker agreed to the terms recited within the document (as if the injured worker had agreed to those terms in a “Supplemental Agreement.”). If the workers’ compensation insurance carrier does not file the Notification of Modification or Suspension in a timely fashion, then the insurance carrier must file a Modification, or Suspension, Petition and litigate the matter before a WCJ.

A question which was unclear was whether a Notice of Ability to Return to Work had to be filed in the case when the injured worker actually does go back to work. Recently, the Commonwealth Court of Pennsylvania decided this issue in Carolyn Ashman v. Workers’ Compensation Appeal Board (Help Mates, Inc.).

The Court held, simply, that the Notice of Ability to Return to Work is not necessary if the injured worker has actually gone back to work. The Court reasoned that the purpose of this Notice is to make sure the injured worker is aware he or she has been released to some type of work; if that person has actually gone back to work, obviously the person was aware of such release. The Court also added that no new Notice is required every time changes are made to the injured worker’s capabilities.

So, for now, it appears the issuance of a Notice of Ability to Return to Work must be issued in any case where the injured worker has not actually returned to employment. If no Notice was issued, then a subsequent Petition to Modify or Suspend (based on assumed earnings) should fail.

December 23, 2009

PA Work Injury Timely 27 Years Later

Typically, in Pennsylvania, a workers’ compensation claim has two important time constraints – a period within which the injured worker must provide notice of the work injury to his or her employer (within 120 days), and a period within which a Claim Petition must be filed with the Bureau of Workers Compensation (within three years). Though this is the rule, there are, of course, exceptions.

In Lancaster General Hospital v. Workers’ Compensation Appeal Board (Weber-Brown), the Commonwealth Court of PA was faced with a situation where the eye of an injured worker was exposed to herpes simplex virus around 1980. The injured worker gave notice to her employer at that time, but the claim was never formally accepted. In 1985, the injured worker left that job. Through the years, the eye had occasional episodes of infection.

In 2007, the treatments for an infection failed to work, and the injured worker underwent a cornea transplant. At that point, the injured worker was legally blind in that eye, and there was a loss of use of the eye under the Pennsylvania Workers’ Compensation Act (called a “Specific Loss”).

A Claim Petition was filed and benefits were awarded by a Workers’ Compensation Judge (WCJ). The Workers’ Compensation Appeal Board (WCAB) affirmed the decision. The WCJ found that the initial exposure was in 1980, but the actual date of injury was May 16, 2007 (the date the doctor told the injured worker that the damage to the eye required the cornea transplant).

The Commonwealth Court also affirmed. The three year statute of limitations was not lost, because the date of exposure was irrelevant. It is the date of INJURY, said the Court, that matters. Since the eye was not “lost” until May 16, 2007, that was the date the “injury” occurred.

Another interesting aspect of this case is the wage the injured worker was earning at the time of the injury [upon which workers’ comp benefits are based] (known as the “Average Weekly Wage” or AWW). The WCJ used Claimant earnings in 2007 (for her new employer). As a practical matter, the injured worker had not worked for the time-of-injury employer since 1985. The workers’ compensation insurance carrier had argued the AWW should either be what the injured worker earned in 1980 (when she was exposed) or 0, since she had no earnings from that employer in 2007. The Court again denied the arguments of the insurance carrier, noting that the date of INJURY was May 16, 2007, so the AWW was properly based on her actual earnings at that time.

As you can see, there are many complicated issues in the world of PA workers’ comp. That is why our firm limits its practice to just representing injured workers in Pennsylvania workers’ compensation cases. You can learn more about the Pennsylvania Workers’ Compensation Act by visiting the FAQ page of our website.

December 14, 2009

Penalty Petition Can Be Filed AGAINST Injured Worker in PA

When a violation of the Pennsylvania Workers’ Compensation Act takes place, the proper avenue of relief is to file a Petition for Penalties. This Petition allows a Workers’ Compensation Judge (WCJ) to assess a penalty of up to 50% of the benefits at issue. Typically, this is filed by an injured worker against the workers’ comp insurance carrier. Common violations include a delayed payment of wage loss benefits, or a refusal to pay for medical treatment related to the work injury.

Until recently, there was no clear answer as to whether a Petition for Penalties could be filed BY a workers’ compensation insurance carrier AGAINST an injured worker. The Commonwealth Court of Pennsylvania has now answered this question in Yespelkis v. Workers’ Compensation Appeal Board (Pulmonology Associates Inc.). The answer is simply, yes, a Penalty Petition can be filed against a claimant in a workers’ comp case.

However, importantly, while a WCJ can assess a penalty against a workers’ compensation insurance carrier of up to 50% of the benefits at issue, the WCJ is limited to assessing a penalty of a forfeiture of interest against an injured worker. This, the Court said, is consistent with the language of the PA Workers’ Compensation Act.

Interestingly, the Court reversed the decision of the Workers’ Compensation Appeal Board (WCAB) and remanded the case to the WCJ, to determine whether unreasonable contest attorney fees should be assessed against the workers’ comp insurance carrier. Though filing a Petition for Penalties against a claimant is not unreasonable as a matter of law, as with any petition filed by the carrier, if there was not a sufficient basis upon which to file the petition, counsel fees are to be assessed.

December 7, 2009

Medical Benefits Can Be Suspended Under PA Workers’ Compensation Act

The Pennsylvania Workers’ Compensation Act allows a workers’ comp insurance carrier to obtain an “Independent Medical Examination” (IME) [Which, of course, is usually anything but “Independent”] at “reasonable” intervals. If an injured worker refuses to attend an ordered IME, a Workers’ Compensation Judge (WCJ) can suspend the injured worker’s benefits under Section 314(a). This was usually interpreted to mean “indemnity” or wage loss benefits, as opposed to medical benefits. Whether medical benefits could be suspended was an open question.

In Giant Eagle v. Workers’ Compensation Appeal Board (Givner), decided by the Commonwealth Court of Pennsylvania recently, this issue was addressed. The workers’ compensation insurance carrier asked the WCJ to suspend compensation benefits of an injured worker who refused to attend a court-ordered IME. The WCJ issued a decision, granting the request of the insurance carrier, that “compensation benefits” be suspended until the injured worker attends the IME. The Workers’ Compensation Appeal Board (WCAB) agreed and affirmed the decision.

On appeal, the workers’ comp insurance carrier asked that medical benefits be suspended along with the indemnity benefits. The insurance carrier argued that the injured worker should be deprived of all compensation for failing to attend the ordered IME. This position was rejected by the Court, which held that medical benefits are separate from indemnity benefits, and are not included in the term “compensation.” The Court found that, in this case, medical benefits are not suspended because the decision of the WCJ cited only “compensation.”

Note though, in the “dicta” (a finding of a court which is not relevant to the “holding” of a case), the Court states that the ability to suspend both indemnity benefits AND medical benefits is within the “sound discretion of the WCJ” and will be upheld unless abuse of discretion is shown. This, the Court said, allows the WCJ to uphold the purpose of the PA Workers’ Compensation Act, which could be frustrated by an injured worker, with benefits already suspended, continuing to receive medical benefits while evading a court-ordered IME.

December 1, 2009

Injured Worker Not in Course of Employment When Commuting to Work

Ordinarily, when an employee is commuting to, or from, work in Pennsylvania, he or she is not in the course of employment. This is known in the PA workers’ comp community as “The Going and Coming Rule.” Thus, if the employee is injured while commuting, usually the injured worker is not entitled to PA workers’ compensation benefits. Like every rule, however, there are exceptions.

Recently, in Leisure Line v. Workers’ Compensation Appeal Board (Walker), the Commonwealth Court of Pennsylvania addressed some of these exceptions. While working as a bus driver for Leisure Line, Mr. Walker commuted from his Delaware home to the bus depot in Coatesville, PA. From the depot, Mr. Walker would drive the bus to and from Atlantic City, NJ. On his way from his home to Coatesville one day, Mr. Walker was injured in a motor vehicle accident.

In asserting that his commute was an exception to the usual rule, and that he was eligible for benefits under the PA Workers’ Compensation Act, Claimant had two main assertions – that he was paid for his travel to Coatesville; and, that his willingness to accept the “Coatesville Run,” an unpopular job assignment, was a “special circumstance” which “furthered his employer’s business.”

The Workers’ Compensation Judge (WCJ) agreed that the collective bargaining agreement provided travel expense to Mr. Walker for his commute to Pennsylvania, and that, therefore, Mr. Walker was in the scope and course of his employment at the time of the injury. As such, the WCJ granted the Claim Petition and awarded workers’ comp benefits. The Workers’ Compensation Appeal Board (WCAB) affirmed the decision of the WCJ, though the WCAB said the reason was because Mr. Walker benefited his employer by accepting the unpopular run, not because of the travel expenses.

Unfortunately for Mr. Walker, the Commonwealth Court of PA disagreed with the reasoning of both the WCJ and the WCAB, and reversed, denying the Claim Petition. As to the travel expenses for getting to the depot in PA, the Court held that since the travel reimbursement was a flat rate (for all drivers), and was not dependent on the time or distance in the commute, and the employer did not control the “means of transportation,” the exception to “The Going and Coming Rule” was not met.

Further, the Court held that accepting an unpopular job location or assignment does not rise to the level of “special circumstances” required for this exception to the rule. The Court felt that having an employee show up at work (even for an unattractive job or at an unappealing job location) is a “universal” circumstance, expected by every employer in Pennsylvania, as opposed to a “special” one.

November 17, 2009

Employers’ Ability to Change Modified-Duty Job Tasks Permissible in PA Workers’ Comp

When an injured worker in Pennsylvania is physically unable to perform his or her time-of-injury job, due to a work injury, the burden falls to the employer to prove the existence of a job that is “available” to the injured worker. For a job to be “available,” it must be within the injured worker’s physical capabilities, as well as be suitable with regard to other “relevant considerations” (which may include vocational suitability, job location, and other factors).

A previous decision of the Commonwealth Court of Pennsylvania had told us that a modified job being offered must specifically state the duties which would be expected. The Supreme Court had already told us that a job which is for only a finite period can only lead to a modification or suspension for that period the job is available.

Recently, however, the Commonwealth Court of Pennsylvania decided Presby Homes and Services v. Workers’ Compensation Appeal Board (Quiah), which calls both of these prior decisions into question.

In Quiah, the injured worker was released to light duty work. The employer offered her a light duty job, and in the job offer letter, specifically listed the duties which would be required. The key, though, is that the job offer letter also stated that this position is merely an at-will job, and that the “job duties, tasks, work hours and work requirements may be changed at any time.”

Relying on the existing law, the Workers’ Compensation Judge (WCJ) found the employer witness not credible, because the job carried these two limitations. The WCJ found that the job was not available to the injured worker. The Workers’ Compensation Appeal Board (WCAB) agreed.

The Commonwealth Court of PA reversed the decision of the WCJ, and found the job available as a matter of law. First, the Court found that the WCJ erred in finding the employer witness not credible; placing these limitations on the job offer, the Court said, had no impact on credibility and the WCJ erred in concluding otherwise.

As to the statement that the job was at-will, the Court observed that most jobs in PA are at-will (short of a contract employee or a union), and therefore, this statement means nothing. This can easily be distinguished from the situation where a job is only offered for a finite period of time. Candidly, this conclusion is reasonable, and consistent with precedent.

More troubling for us, as attorneys who represent injured workers in PA, is the Court’s dismissal of the second caveat, that job duties can be changed at any time. The Court flippantly noted that if new duties are inconsistent with the injured worker’s capabilities, the injured worker can simply file a Petition for Reinstatement. This seems a rather naïve view from such a learned body. While the injured worker can discuss the initial job offer letter with his or her lawyer, and doctor, and consider options without duress or pressure, the injured worker has no such luxury when job duties are changed at any moment during a work day. This seems to be a recipe for disaster for an employer to intimidate its employee into doing more than his or her condition would safely allow. Since the Courts are fond of noting that the Pennsylvania Workers’ Compensation Act is remedial legislation, intended to be liberally construed in favor of the injured worker, such a draconian ruling from this Court is quite disappointing.

November 11, 2009

Philadelphia Housing Authority Patrol Officer Denied Workers’ Compensation Benefits When Shot, Because He Failed to Follow Proper Police Procedure

In PA, an injured employee is entitled to workers’ compensation benefits only when the injury takes place while the employee is in the scope and course of his or her employment. Often, this is something obvious, as when the employee is actually injured while on the employer’s premises, performing the usual and customary duties of his or her job. There are times, though, when the injured worker is either not on the employer’s premises, or not engaged in the job duties, at the time of the accident. These situations can be dependent on the precise facts in each case.

Recently, the Commonwealth Court of Pennsylvania dealt with this issue in Graves v. Workers’ Compensation Appeal Board (Philadelphia Housing Authority), decided by the Court on October 23, 2009. In this case, the Claimant, Mr. Graves, was a Philadelphia Housing Authority patrol officer. He was shot while off-duty, confronting an armed man outside a tavern in South Philadelphia. The claim was denied by the workers’ compensation insurance carrier, who said Claimant was not in the scope and course of his employment at the time of the shooting.

The Workers’ Compensation Judge (WCJ) found the employer’s witness, the Assistant Police Chief of the Philadelphia Housing Authority, more credible than Claimant, and denied the Claim Petition. The employer witness had completed a report of his investigation of the incident and testified from this report. Specifically, the employer witness testified that Claimant failed to follow proper police procedure, and was not acting as a police officer when he was shot. Claimant had objected to the use of this report, on the basis of hearsay (an out-of-court statement, used to prove the truth of the matter asserted).

In its decision, the Court found that the testimony of the employer witness was not hearsay. The witness was not testifying from the report (which was arguably hearsay), but instead was giving his opinions based on the testimony of Claimant as to what took place. As a result, the Court affirmed the decision of the WCJ, and the WCAB, in denying the Claim Petition.

Actually, to my review, and that of the dissent, authored by Judge McCloskey, whether the testimony of the employer witness was hearsay or not does not resolve the issue. The dissent pointed out that by making this case turn on whether Claimant followed “appropriate police response” injects a negligence aspect to a workers’ compensation case. Since the PA workers’ comp system is specifically designed to be a no-fault scheme, raising the issue of whether proper procedure was followed sets a dangerous precedent. The dissent suggests, and I agree, that the matter should have been remanded to the WCJ to consider “the factual question of whether claimant, in acting on the belief that he was authorized to make arrests while off-duty, took action with the intent to accomplish an arrest of the person who shot him.”

October 29, 2009

Modification of Workers’ Compensation Benefits in PA, Based on IRE, May Require Job Availability to be Shown

In a case that has been working its way through the Pennsylvania Workers’ Compensation system for some time now, the Supreme Court has accepted appeal in the matter of Diehl v. Workers’ Compensation Appeal Board (WCAB).

As was discussed in a previous blog entry, the Commonwealth Court of Pennsylvania concluded that a workers’ compensation insurance carrier need not prove job availability whether or not the IRE request is made within 60 days of the expiration of 104 weeks of total disability. Instead, if that time period is missed, the workers’ comp insurance company merely has to prove the Impairment Rating Evaluation resulted in an impairment rating of less than 50%.

The Supreme Court of PA has accepted appeal to determine whether evidence of job availability or earning power is required to change disability status from total to partial as a result of an IRE.

As always, we will keep you informed on further developments in this important area.

October 26, 2009

Labor Market Surveys and Earning Power Assessments When The Injured Worker Lives Outside Pennsylvania

In year’s past, before 1996, when a workers’ compensation insurance carrier wanted to reduce an injured worker’s benefits in PA, the insurance carrier had to refer the injured worker to jobs, which then had to be open and available to the injured worker. This process was set forth not by the Pennsylvania legislature, but by the Supreme Court of PA in Kachinski v. Workers’ Compensation Appeal Board, decided in 1981.

This process changed in 1996, when the PA legislature amended the Pennsylvania Workers’ Compensation Act. No longer does a workers’ comp insurance company have to actually refer an injured worker to a then-open job. Instead, the PA legislature opted for a system more like that used by the Social Security Administration in Social Security Disability cases. All that is required to be proven to modify workers’ compensation benefits is that suitable employment is generally available to the injured worker in the injured worker’s usual employment area.

This involves the use of “Labor Market Surveys (LMS),” also known as “Earning Power Assessments (EPA).” The injured worker is not referred to any specific job at all. The vocational expert retained by the workers’ comp insurance company just gathers data of jobs generally available in the geographic area of the injured worker. The premise is that if the injured worker wanted to look for work, these are the types of jobs the injured worker could find.

Recently, the Supreme Court of Pennsylvania addressed this issue again, in Riddle v. Workers’ Compensation Appeal Board (WCAB). More specifically, the Court addressed what geographic area must be used for the LMS or the EPA, if the injured worker resides out of the State of Pennsylvania.

In the Riddle case, the injured worker lived in West Virginia, but listed an Ohio address on his driver’s license. Mr. Riddle actually worked in Pittsburgh, which is where the injury took place. The vocational expert created a LMS/EPA focusing on where the injured worker was living, rather than where the injury took place. No jobs listed in the LMS/EPA were located in Pittsburgh.

The Workers Compensation Judge (WCJ) granted the workers’ comp insurance carrier’s Petition to Modify Benefits, based on the LMS/EPA. This was affirmed by both the WCAB and the Commonwealth Court of Pennsylvania. However, on appeal, the decision was reversed by the Supreme Court of PA.

Using the actual language of the Pennsylvania Workers’ Compensation Act, the Court found that if an injured worker resides out of PA, “the usual employment area where the injury occurred shall apply.” Since the injury occurred in Pittsburgh, Pennsylvania, the LMS/EPA, which focused on West Virginia, was insufficient, as a matter of law, to justify a modification of benefits. As such, the decision granting the Modification Petition was reversed.

October 22, 2009

Injured Worker Terminated For Misconduct Prior to Work Injury Can Lose Workers’ Comp Rights in PA as a Result

When a worker is injured in Pennsylvania, he or she is generally entitled to workers’ compensation benefits when wages are lost due to the injury. Whether this loss in wages is actually due to the injury is a point often litigated. The issue can be particularly difficult when the injured worker is terminated from his or her job, allegedly for reasons unrelated to the work injury.

This issue comes up on occasion when an injured worker is receiving total disability benefits, and the workers’ compensation insurance carrier wants to reduce or stop those benefits. The continued receipt of total disability benefits may hinge on whether the injured worker was terminated for reasons unrelated to the work injury. The case law had suggested that if an injured employee is terminated after a work injury, for actions that took place before the work injury, the termination is considered related to the work injury.

The Commonwealth Court of Pennsylvania recently addressed this issue in Harvey v. Workers’ Compensation Appeal Board (WCAB). In that case, Ms. Harvey, a registered nurse, suffered a fracture in her neck, requiring a cervical fusion, in a work-related motor vehicle accident on July 4, 2001, and began to receive total disability benefits.

While investigating the accident, police allegedly discovered narcotic medications in Ms. Harvey’s car. When advised of the findings, the employer, Monongahela Valley Hospital located in Western Pennsylvania, investigated how Ms. Harvey had obtained the narcotics. The hospital concluded that Ms. Harvey had been signing out narcotic medications, but not delivering the drugs to patients. As a result of her violation of hospital policy, Ms. Harvey was terminated.

When Ms. Harvey was released to light duty work, the workers’ comp insurance carrier filed a Petition for Modification, to reduce the workers’ compensation benefits. The hospital presented testimony that jobs would be available within the physical restrictions of Ms. Harvey, but that she could not accept the jobs because she had been terminated for reasons unrelated to her work injury. Ms. Harvey contended that, since she was terminated after the injury for actions which took place before the work injury, the termination must be considered related to the work injury. As such, if the jobs were not being offered to her, then the employer was not able to demonstrate that work was actually “available” to her.

The Court found for the workers’ compensation insurance company, and granted the Petition for Modification. While the actions at issue took place before the work injury, the employer was not aware of the misconduct until after the work injury. A clear distinction was drawn by the Court when misconduct occurs before the work injury – if the employer knew of the misconduct before the injury, but elects to terminate the injured worker after the work injury, the termination is considered related to the injury. If, however, the employer did not know of the actions until after the work injury, as with Ms. Harvey’s case, then the termination is considered unrelated to the work injury.

October 20, 2009

Second Work-Related Injury in PA Does Not Add Second Period of Partial Disability

While there is no limit to the period of time an injured worker in Pennsylvania can receive workers’ compensation benefits for total disability, the same is not true for partial disability. In PA, an injured worker can receive a maximum of 500 weeks of partial disability. After that time, even if a loss in earnings remains, as a result of the work injury, the workers’ comp insurance carrier is relieved of payment of the workers’ compensation benefits for partial disability.

Today, the Commonwealth Court of Pennsylvania issued a decision in the matter of Reutzel v. Workers’ Compensation Appeal Board (WCAB), addressing whether this 500 week period of partial disability benefits can be “stacked” if there is more than one injury.

In September, 1996, Ms. Reutzel injured her right shoulder at work. As a result of this injury, Claimant was limited to working reduced hours and began to lose wages. Workers’ compensation benefits for partial disability began. In May, 1997, Ms. Reutzel suffered another injury at work, this time to her lumbar spine. Again, she quickly went back to work, although she remained at the same restrictions as before. Partial disability benefits continued, as they had before the 1997 injury.

The 500 week period of partial disability benefits ended in June, 2006, and the workers’ comp insurance company stopped the payments. A Petition for Reinstatement was filed by Ms. Reutzel. According to Ms. Reutzel, she only used the 500 week period from the 1996 injury; she contended that she still had another 500 week period for the 1997 injury.

Unfortunately for Ms. Reutzel, the Court did not agree. Citing to the language of the Pennsylvania Workers’ Compensation Act, and later cases which interpreted the section of the Act at issue, the Court held that an injured worker in Pennsylvania only has a single 500-week period of partial disability with an injury, and that this period begins to run on the date total disability benefits are initially suspended. In other words, the start of the 500 week period for the 1997 injury was not delayed or stopped by the presence of the 500 week period for the 1996 injury. The Court noted that there was no change in the disability status as a result of this latter work injury. The 500 week periods of partial disability run concurrently, rather than consecutively, when there is more than a single work injury involved.

October 15, 2009

IRE in PA Workers’ Comp Cannot Be Challenged on Validity After Appeal Period of Notice of Change Expires

In PA workers’ compensation, there is no limit to how long an injured worker can receive total disability benefits. Once an injured worker receives total disability benefits for a period of 104 weeks, however, the workers’ comp insurance company can request the injured worker attend an Impairment Rating Evaluation (IRE). Similar to an Independent Medical Examination (IME, more practically known as a Defense Medical Examination, DME), a physician conducting an IRE will examine the injured worker.

Based on that examination, the IRE physician will calculate the whole body impairment rating. The rating is to include only the effects of the work injury. If the whole body impairment rating is found to be less than 50%, then benefits are changed from total to partial (though the amount of benefits received should not change). We have discussed the IRE process in previous blog entries.

Today, the Commonwealth Court of Pennsylvania issued a decision in the matter of Johnson v. WCAB (Workers’ Compensation Appeal Board). This decision deals with what can be challenged in an impairment rating, once the status is changed from total to partial.

The Claimant in Johnson received a Notice of Change of Workers’ Compensation Disability Status when an IRE showed a 15% whole body impairment rating. She did not file an appeal to this Notice. About a year later, Claimant filed a Petition to Review alleging the IRE was faulty (because the IRE physician was not qualified to perform an IRE on her type of injury).

According to the Court, since Claimant failed to file an appeal of the Notice of Change of Workers’ Compensation Disability Status, Claimant could not challenge the validity of the IRE itself, and her Petition to Review should have been dismissed. Indeed, the Court found that a prerequisite to filing a Petition to Review in such a case is that the injured worker have a determination from a doctor that there is an impairment rating equal to, or greater than, 50 percent. In other words, all that an injured worker can challenge at that time is whether the total disability has recurred.

Once again, we are reminded of the permanent effects an injured worker in PA can suffer if time periods under the Pennsylvania Workers’ Compensation Act are not followed. Sometimes, as in this case, not even an experienced PA workers’ comp attorney can fix what has happened. It is for reasons such as this that we urge every injured worker in Pennsylvania to have the benefit of representation by a knowledgeable PA workers comp attorney.

September 16, 2009

Injured Worker Testimony of Back Pain Not Enough for Workers’ Compensation Case in PA

Who better than the injured worker to know the pain that person is feeling? At this point in medical science, we do not have a “pain meter.” Doctors can examine a person, and obtain diagnostic testing, such as x-ray, MRI and CT scan, but, ultimately, doctors can only tell us whether they can find an objective basis for a person’s pain. No doctor could credibly state whether a person has pain.

This becomes an issue in PA workers’ compensation cases. A Workers’ Compensation Judge (WCJ) must decide whether to believe an injured worker, when he or she testifies regarding the symptoms they suffer. At least, that is how a reasonable person could assume the system works.

In reality, in PA, according to a recent decision by the Commonwealth Court of Pennsylvania, the testimony of the injured worker, without matching testimony from a physician, cannot defeat a petition filed by the workers’ compensation insurance carrier to modify or suspend the injured claimant’s workers’ compensation benefits. In World Kitchen, Inc. v. WCAB (Workers’ Compensation Appeal Board), the Independent Medical Examiner (IME, otherwise known as Defense Medical Examiner (DME)), released the injured worker to full time work.

The injured worker tried the job in good faith, but she was not able to work full time due to continuing back pain. The WCJ decided that the workers’ compensation insurance carrier had to pay workers’ compensation benefits based on the actual wages earned by the injured worker. The Commonwealth Court of PA reversed the WCJ, finding that the Petition to Modify should have been granted. The Court reasoned that the testimony of claimant, that she had to leave work on occasion due to ongoing back pain, was not sufficient by itself to defeat the Petition. Since the claimant presented no medical evidence (deposition of a doctor) of her own, she must lose.

As the dissent in the case pointed out, the testimony of an injured worker by itself IS enough to reinstate workers’ comp benefits in PA, so it is silly to say such testimony is not enough to keep benefits going.

This case highlights the dangers of an injured worker litigating a workers’ compensation case in Pennsylvania without the representation of an experienced PA workers’ comp attorney. Not only did this injured worker not know a medical deposition was necessary to win the case, in all likelihood, the injured worker lacked the funds to pay for a medical deposition. Many workers’ compensation firms, including Brilliant & Neiman, LLC, never charge their clients for the costs of litigating a case (which can easily run more than $5,000).

September 8, 2009

PA Workers’ Comp Insurer Required to Pay for Additional Modifications to Home of Worker Paralyzed in Work Injury

Injured workers in Pennsylvania are entitled to payment of wage loss benefits, as well as payment for medical treatment related to the work injury. The term “medical treatment” in PA is defined broadly. It includes obvious items, such as an MRI or x-ray, medications, doctor visits and surgery, but it also can include items you might not immediately consider, such as prosthetic devices and home modifications.

Regarding home modifications, Pennsylvania Courts have previously held that a workers’ comp insurance carrier only has to modify an injured worker’s home one time. While the workers’ compensation insurance company is required to replace medical equipment that wears out, such as wheelchairs, braces and orthotics, the law was unclear whether revisions to a home modification had to be paid for by the workers’ comp insurance carrier.

Recently, the Commonwealth Court of Pennsylvania decided the case of Equitable Resources v. WCAB (Workers’ Compensation Appeal Board). In that case, the injured worker was paralyzed in the work injury. The workers’ compensation insurance carrier paid for modifications to the home. Unfortunately, some time later, it was discovered the modifications were done poorly, and considerable expense was required to fix the mistakes made by the original contractor (who, by the way, was selected by the employer). The workers’ comp insurance carrier refused to pay for the subsequent repairs, believing they had paid for the initial home modification, and that was the extent of their responsibility.

The Court found repair of the home modifications closer to the replacement of a worn-out wheelchair than additional modifications to a home. As such, the Court directed the workers’ compensation insurance carrier to make payment. This seems to be a just result, appropriately reflecting that the PA Workers’ Compensation Act is, “remedial in nature and is intended to benefit workers, and therefore, the Act must be liberally construed in order to effectuate its humanitarian objectives.”

July 22, 2009

Notice of Compensation Payable Can be Amended in PA Workers’ Comp Without Petition

As we discussed in a previous blog entry, the Supreme Court of Pennsylvania accepted review of the Cinram Manufacturing v. Workers’ Compensation Appeal Board (Hill) case. This case dealt with how one can change or amend a Notice of Compensation Payable (NCP) under the PA Workers’ Compensation Act. Yesterday, the Supreme Court issued a decision, affirming the decision of the Commonwealth Court of PA.

The Supreme Court decided that there are two types of changes one can make to a NCP: The change is either a “corrective amendment” (meaning the diagnosis or injury was one present when the work injury took place) or it is a “subsequently-arising” or “consequential” condition (something which happened after the date of injury, such as depression from chronic pain, Complex Regional Pain Syndrome (CRPS)/Reflex Sympathetic Dystrophy (RSD), fibromyalgia, overuse syndrome, just for examples).

A Workers’ Compensation Judge (WCJ) can order a change to the NCP in the “corrective amendment” situation, regardless of what type of litigation is pending. However, if the situation is one involving a subsequent or consequential condition, then the claimant must file a Petition to Review. This distinction drawn by the PA Supreme Court represents a change from what was believed to be existing law (Specifically, the cases of Jeanes Hospital v. Workers’ Compensation Appeal Board (Hess) and Commercial Credit Claims v. Workers’ Compensation Appeal Board (Lancaster), both previously decided by the Supreme Court of PA).

In either of these situations, if the claimant wishes to amend or change the Notice of Compensation Payable, the claimant has the burden of proof on the issue.

July 7, 2009

PA Workers’ Compensation Insurance Carrier Can Suspend Benefits to Injured Worker Who Moves Out of the Country

Ordinarily, to suspend (or even modify) workers’ compensation benefits to an injured worker in PA, the workers’ compensation insurance carrier must show a change of medical condition and prove work is available within the injured worker’s physical capabilities [Benefits can be suspended for other reasons, but this is the most common].

There are exceptions to this rule, and one of those exceptions was the issue involved in Braz v. Workers’ Compensation Appeal Board (WCAB), decided recently by the Commonwealth Court of Pennsylvania.

Claimant decided to move to Portugal after his injury. Upon learning of this fact, the workers’ compensation insurance carrier filed a Petition to Suspend Compensation Benefits, since Claimant had “voluntarily removed himself from the labor market.” Because the workers’ comp insurance company presented no medical evidence, showing a change in medical condition, the Workers’ Compensation Judge (WCJ) denied the Petition. On appeal, the WCAB reversed the WCJ, and granted the Petition.

The Commonwealth Court of Pennsylvania affirmed the WCAB, finding that by permanently relocating out of the Country, Claimant elected to remove himself from the workforce. As such, the Court determined that Claimant was no longer entitled to workers’ comp benefits.

July 2, 2009

Injured Worker Not in Scope and Course of Employment When on Break

To obtain workers’ compensation benefits in PA, the worker must be injured while in the scope and course of his or her employment. Fortunately, PA law does not require that a worker be chained to his or her desk, or work area, the entire day. Pennsylvania law recognizes that “small temporary departures” from work do not remove an employee from being in the scope and course of his or her employment. The degree of latitude given also varies depending on whether one is a “stationary” as opposed to a “traveling” employee.

Recently, the Commonwealth Court of Pennsylvania decided Department of Labor & Industry v. Workers’ Compensation Appeal Board (Savani), finding a stationary employee not in the scope and course of her employment when she fell and suffered a fractured arm while off the employer’s property on a paid break. The Court found that being off the employer’s property for personal reasons, even though on a paid break, was not “a small temporary departure from work” or an “inconsequential or innocent departure from work.”

These types of cases vary greatly, depending on the facts in each situation. This is why it is important to have your case reviewed by an experienced PA workers’ comp attorney.

June 12, 2009

Notice of Work Injury Found Not Sufficient Under PA Workers’ Comp Act

**Update - Decision of the Commonwealth Court of PA REVERSED by Supreme Court of Pennsylvania on July 20, 2011 - See blog entry of August 2, 2011**

When a worker gets hurt at work in PA, the Pennsylvania Workers’ Compensation Act requires that the employer be notified of the injury with 120 days. If the injury is one of repetitive, or cumulative, nature, such as carpal tunnel syndrome or hearing loss, the 120-day period does not begin until the date the condition, and its relation to work, is known (called “the discovery rule”). This notice does not need to contain the exact diagnosis of the work injury, but merely “a reasonably precise description of the injury.”

In Gentex Corp. v. Workers’ Compensation Appeal Board (Morack), decided by the Commonwealth Court of Pennsylvania on June 4, 2009, the Court addressed what “sufficient” notice of an injury must contain.

Ms. Morack began having pain in her hands at work. At first, she was not aware it had anything to do with her job. She applied for short-term disability benefits on February 2, 2005, putting on the application that her disability was not work-related, and the condition was swelling in arms, hands, knees and ankles from fibromyalgia and high blood pressure.

Later in February, 2005, her doctor advised her that she had carpal tunnel syndrome, and it was related to her duties at work. Ms. Morack called her employer and left a message on voicemail that she had “work-related problems.” The next notice came to the employer in September, 2006, when they received a copy of the Claim Petition.

The Workers’ Compensation Judge (WCJ) found Ms. Morack credible and granted the Claim Petition. The WCJ found that Ms. Morack called the employer and gave notice within 120 days. The Workers’ Compensation Appeal Board (WCAB) affirmed.

On appeal to the Commonwealth Court, the employer had two arguments. First, the employer said Ms. Morack failed to prove the voicemail was left within 120 days (no time was stated for when the voicemail was left). Second, the employer alleged the notice given was not sufficient.

The Court disagreed on the first point, finding that, since Ms. Morack was found credible, and won before the WCJ, she is entitled to all reasonable inferences. Based on the evidence, there was no reason to believe the voicemail was left more than 120 days from the injury date.

On the second argument, however, the Court agreed with employer and reversed the decision of the WCJ. The Court found that simply telling the employer that she had “work-related problems” was not sufficient. While, in some situations, the short-term disability application may provide the missing detail, here, the application cited body parts and conditions not even alleged to be work-related, so it was of no help. In the end, Ms. Morack failed to provide any description at all of her alleged work injury. As such, the granting of the Claim Petition was reversed by the Court.

June 5, 2009

Review of Utilization Review Barred Even When Doctor Sends Medical Records

In PA, when a workers’ compensation insurance carrier wants to challenge whether medical treatment is reasonable or necessary, the insurance carrier can request Utilization Review (UR). In such a case, the PA Bureau of Workers’ Compensation assigns the UR Request to a Utilization Review Organization (URO). The URO then obtains records from the provider under review, and a personal statement from the injured worker if he or she wishes, and a Utilization Review Determination is issued. This Determination can then be appealed by either party by filing a Petition to Review Utilization Review Determination.

However, if the healthcare provider under review fails to submit records, the regulations to the Pennsylvania Workers’ Compensation Act require the URO simply find treatment unreasonable and/or unnecessary, because records were not submitted. In this situation, no report is prepared by the URO, and no findings on the merits are made. Importantly, this type of Determination cannot be appealed under the County of Allegheny v. Workers’ Compensation Appeal Board case, decided by Commonwealth Court of Pennsylvania in 2005.

Recently, the Commonwealth Court of Pennsylvania has made things even worse for injured workers, by extending County of Allegheny. The case of Sexton v. Workers’ Compensation Appeal Board (WCAB) was decided by the Court on May 22, 2009. In Sexton, the provider submitted records to the URO, but forgot to submit a verification with the records. The URO returned the records to the provider, so the provider could resubmit the records with the required verification. Unfortunately, the provider never resubmitted the records or the verification.

The Workers’ Compensation Judge (WCJ) ordered a new UR be performed. The WCAB, though, reversed. This was affirmed by the Commonwealth Court of PA. The Court found that the verification was required to be submitted, to assure the records were true and correct. Since the verification (and the records) were never resubmitted, the URO could not generate a report and reach a Determination on the merits. As such, under County of Allegheny, the Determination could not be appealed by the injured worker.

I find County of Allegheny inconsistent with the terms, and the spirit, of the Pennsylvania Workers’ Compensation Act, which was intended to be humanitarian legislation, beneficial to the injured worker. Sexton then extends the harm even further. Records were actually submitted in Sexton. As the dissent by Judge Johnny J. Butler (former Secretary of the PA Department of Labor & Industry) observed, there was no authority in the Act for the URO to send the medical records back to the provider. Worse, even if medical records could not be used on appeal, what is the basis for precluding the injured worker from testifying as to the reasonableness and/or necessity of the treatment at issue? Under the Act, if the testimony of the injured worker was found credible, this could be the basis to grant a Petition to Review Utilization Review Determination. Under current law, however, the injured worker cannot even file the Petition to Review Utilization Review Determination when the provider fails to submit records.

June 1, 2009

PA Workers’ Compensation Appeal Board Reversed – Testimony of Claimant’s Doctor Unequivocal

When a work injury is denied by the workers’ compensation insurance carrier in PA, the injured worker must file a Claim Petition with the Pennsylvania Bureau of Workers’ Compensation. The Claim Petition is then litigated before a Workers’ Compensation Judge (WCJ). To win a Claim Petition, usually the injured worker needs the WCJ to find both the injured worker, and his or her doctor, credible.

The testimony of the medical expert must be “unequivocal,” that the injured worker suffered a work-related injury, and has been disabled from work as a result of this injury. “Unequivocal” does not require 100% certainty (since nothing in life is 100% certain), but simply requires the doctor to believe that is the case.

A recent decision by the Commonwealth Court of Pennsylvania, Moyer v. Workers’ Compensation Appeal Board (WCAB), addressed this issue. The WCJ in this case found Claimant and his doctor credible and granted the Claim Petition. However, the WCAB reversed the WCJ, finding the testimony of Claimant’s doctor to be equivocal.

The Claimant had a past medical history of low back problems, before the work injury, and the WCAB felt the testimony of Claimant’s doctor was based only on the fact there was an increase in pain just after Claimant lifted a bucket at work. The opinion of a doctor is equivocal if it assumes an injury is work-related just because it happens right after an event at work. Similarly, an opinion is equivocal if the doctor can only say the work event “could have” caused the disability.

The Commonwealth Court of Pennsylvania reversed the WCAB, and granted the Claim Petition. The Court noted that one cannot take a single statement of a witness out of context; instead, one must examine the testimony as a whole. When looked at in this way, the Court found the testimony of Claimant’s doctor was based on the history given by Claimant (found credible by the WCJ), and observed a difference in Claimant’s condition before and after the event at work. The doctor did not merely say the event “could have” caused the aggravation of his low back condition, the doctor testified the event “was” the cause of the aggravation. Considering all of this, the opinion of Claimant’s doctor was unequivocal.

Cases like this highlight the importance of getting the right testimony from medical witnesses. If the attorney is not familiar with PA workers’ comp law, the testimony obtained may not be sufficient to win a Claim Petition.

May 15, 2009

Workers’ Comp Benefits in PA Suspended When Injured Worker Has Earnings

Typically, under the Pennsylvania Workers’ Compensation Act, the benefits of an injured worker are reduced based on any earnings the injured worker has after his or her injury. Specifically, the injured worker receives two-thirds of the difference between the pre-injury earnings and the post-injury earnings (up to a statutory maximum).

In a somewhat troubling decision issued by the Commonwealth Court of PA, Alessandro v. Workers’ Compensation Appeal Board, an injured workers’ benefits were ordered to be suspended, despite the workers’ comp insurance carrier having no evidence that post-injury earnings equaled pre-injury earnings. The Court, noting that the Workers’ Compensation Judge found the injured worker not credible, believed the burden to show earnings (and subsequent wage loss) rests with the injured worker, not the workers’ comp insurance carrier.

As an attorney who represents injured workers in Pennsylvania, I find this decision problematic. Mr. Alessandro testified that he worked some, but had a large wage loss. Since it appears he was paid in cash (meaning there are no written wage records), and Mr. Alessandro was found not credible, as a practical matter, it seems almost impossible for Mr. Alessandro to prove he has a wage loss. How can one prove an absence of earnings?

May 5, 2009

Social Security Retirement Offset Against Workers’ Compensation Benefits Unconstitutional Says Utah Supreme Court

Under Section 204(a) of the Pennsylvania Workers’ Compensation Act, a workers’ comp insurance company in PA is entitled to an offset when an injured worker receives Social Security Retirement Benefits (SSR). This is one of the provisions in the Act that seems most unfair to us attorneys who represent injured workers in PA.

The Supreme Court of Utah recently declared a similar provision in that State’s workers’ compensation laws to be unconstitutional, as it discriminated against injured workers on the basis of their age. Only injured workers old enough to qualify for SSR would have their workers’ comp benefits reduced.

Since workers’ compensation laws vary widely from State to State, there is no direct impact of this decision on the laws in Pennsylvania. However, this law does give us hope that a similar result can eventually be accomplished in the Supreme Court of Pennsylvania.

May 1, 2009

Workers’ Comp Benefits Modified in PA With No Job Availability Shown

As discussed in previous blog entries, the case of Diehl v. Workers’ Compensation Appeal Board is of great importance in determining whether it matters when a workers’ compensation insurance carrier in Pennsylvania requests an Impairment Rating Evaluation (IRE) within 60 days of the expiration of 104 weeks of total disability.

In a decision rendered on April 28, 2008, the Commonwealth Court of Pennsylvania held that a PA workers’ compensation insurance carrier must show job availability if the IRE request is not made within that 60 day period. This decision was then vacated by the Court, to be addressed again by the entire Court (rather than a panel, as this decision was). Finally, on April 22, 2009, the Court issued a final decision in this matter, achieving a different result.

As feared by attorneys who represent injured workers in PA, the Court held that a workers’ compensation insurance carrier need not prove job availability whether or not the IRE request is made within that 60 day period. Instead, if that time period is missed, the workers’ comp insurance company merely has to prove the Impairment Rating Evaluation resulted in an impairment rating of less than 50%.

Unfortunately for injured workers in Pennsylvania, this means there is very little difference whether the workers’ comp insurance carrier requests the IRE within the 60 day period or not.

April 7, 2009

Modification of Benefits After Impairment Rating Evaluation Takes Effect on Date of Evaluation, Not on Date of Subsequent Decision Granting Modification

One of the major changes in the Pennsylvania Workers’ Compensation Act, which was enacted in the 1996 amendments, is the creation of the Impairment Rating Evaluation (IRE). Under this concept, once an injured worker receives 104 weeks of temporary total disability benefits, the workers’ comp insurance company has the right to send the injured worker for an IRE. If the IRE results in a whole body impairment rating of less than 50% (which covers more than 98% of injured workers; this is an impossibly high standard), the status of workers’ compensation benefits can be changed from total to partial. This change in the status of benefits does not effect the rate of the weekly compensation, but how long such benefits can be received by an inured worker.

In PA, an injured worker can only receive a maximum of 500 weeks of partial disability benefits (there is no limit to the receipt of total disability benefits). Therefore, once the status of benefits is changed from total to partial, the receipt of benefits may be capped at 500 weeks.

If the IRE is requested within 60 days of the expiration of 104 weeks of total disability benefits, the change in status is automatic (the PA workers’ comp insurance carrier only has to file a Notice of Change of Status). On the other hand, if the request is not made within this window, the PA workers’ comp insurance carrier must file, and litigate, a Petition for Modification to have the status changed. In this situation, attorneys representing injured workers in PA have wondered whether the change in status takes effect on the date of the IRE or the date a Workers’ Compensation Judge (WCJ) decides the Modification Petition.

The Commonwealth Court of Pennsylvania recently answered this question in Ford Motor/Visteon Systems v. Workers Compensation Appeal Board (Gerlach). Unfortunately, the Court stated that the change in status is effective on the date the condition changed (the date of the IRE), rather than the later date the WCJ decides the Modification Petition. Given that litigation of a Modification Petition often lasts over a year, the injured worker is then left with far less than 500 weeks of benefits when the dust settles.

April 3, 2009

PA Workers’ Comp Benefits Can Only be Stopped After Conviction – Incarceration Alone Insufficient

Under the Pennsylvania Workers’ Compensation Act, an insurance carrier can stop paying benefits to an injured worker who is “incarcerated after a conviction.” The Commonwealth Court of Pennsylvania recently emphasized that there must be a conviction before workers’ compensation benefits can be suspended.

In Rogele Inc.v. Workers’ Compensation Appeal Board (Mattson), which the Court decided on April 2, 2009, the Workers’ Compensation Judge (WCJ) assessed penalties against the workers’ comp insurance carrier, after the carrier stopped paying benefits to the injured worker. In that case, the injured worker was in jail, in the process of pleading guilty to a felony which was to entail significant jail time. At the time benefits were stopped, however, there had been no conviction.

The Court affirmed the decision of the WCJ, finding that in PA, as anywhere in the United States, one is innocent until proven guilty. Whether one later pleads guilty is irrelevant. The plain language in the Pennsylvania Workers’ Compensation Act requires the claimant be “incarcerated after a conviction.”

The Court rejected the workers’ comp insurance carrier’s argument that the incarceration caused the injured worker to intentionally, or voluntarily, remove himself from the work force. Again, until there is a conviction, even if it results from a guilty plea, everyone is innocent.

March 31, 2009

PA Workers’ Comp Recognizes Carpal Tunnel Syndrome can be Cumulative Trauma or Repetitive Stress Injury

In Liveringhouse v. Workers’ Compensation Appeal Board, decided on March 19, 2009, the Commonwealth Court of Pennsylvania reversed the decision of a Workers’ Compensation Judge (WCJ), which denied claimant’s Petition to Review. In this case, the injured worker filed her Petition to Review to add carpal tunnel syndrome to her accepted PA work injury.

The WCJ denied that Claimant suffered from carpal tunnel syndrome at all. Since all three medical experts testified (two for the workers’ compensation insurance carrier) that Claimant did have carpal tunnel syndrome, the Court found that the decision of the WCJ was defective. “It is well settled that a WCJ is not competent to make independent medical determinations.” The WCJ also erroneously stated that the injured worker never testified that she had to twist using her pliers, when in fact the record showed such evidence. Still, the two doctors who testified for the workers’ compensation insurance carrier found that the carpal tunnel syndrome was not work-related.

One of those doctors based his opinion primarily on his belief that carpal tunnel syndrome “could be related to job duties only when the jobs involve the use of significant vibratory tools over long periods of time.” In what would normally seem to be a determination of credibility, made solely by a WCJ, the Court found this opinion completely defective. Specifically, the Court stated, “Courts consistently have regarded carpal tunnel syndrome as a condition that arises as a classic cumulative trauma or repetitive stress injury that may result from use of the hands in a variety of job settings, and they have never limited benefits for carpal tunnel to cases involving use of ‘significant vibratory tools’ over long periods.”

The other doctor testifying for the workers’ compensation insurance carrier refused to give an opinion regarding cumulative trauma or repetitive stress, saying he would only give opinions regarding an injury which may have occurred on a specific date. As such, the Court found the WCJ erred by using this testimony to counter other medical evidence that the work duties did lead to the carpal tunnel syndrome. Ultimately, the Court “vacated” the decision of the WCJ, and “remanded” the case back to the WCJ, for the WCJ to issue another decision, consistent with the proper legal standards.

Given the pronouncement of the Court that “carpal tunnel syndrome (is) a condition that arises as a classic cumulative trauma or repetitive stress injury that may result from use of the hands in a variety of job settings,” PA workers’ compensation insurance company doctors (“Independent Medical Examiners” or IMEs) may now have a more difficult time testifying that repetitive work duties cannot cause carpal tunnel syndrome. This is a victory for attorneys who represent injured workers in PA workers’ comp cases.

March 24, 2009

Litigation Costs Not Ordered Despite PA Claim Petition Being Granted

Ordinarily in a Pennsylvania workers’ compensation case, litigation costs incurred by an injured worker (or his or her lawyer) are reimbursed by the PA workers‘ comp insurance carrier if the injured worker was successful “in whole or in part.” This is a very important concept; if claimant attorneys cannot get their litigation costs reimbursed, some meritorious workers’ comp cases will be declined, as the attorneys will not be able to afford litigating them.

A recent decision by the Commonwealth Court of Pennsylvania, Reyes v. Workers’ Compensation Appeal Board (WCAB), limits the injured worker’s attorney in recovering costs, despite being successful on a Claim Petition, at least in part.

In Reyes, the claimant was injured in a work-related motor vehicle accident. A Notice of Denial (NCD) was issued, which acknowledged the injury, but denied disability. The injured worker filed a Claim Petition. The Workers’ Compensation Judge (WCJ) granted the Claim Petition for a closed period of time, finding that the work injury fully resolved on the date on the Independent Medical Examination (IME). The WCJ denied an award of wage loss benefits, finding that claimant failed to prove he was ever disabled from work. Finally, the WCJ denied an award of litigation costs, saying that the claimant was not successful at all.

On appeal, both the WCAB and the Commonwealth Court agreed with the WCJ, and denied wage loss benefits to claimant and litigation costs to the attorney. Despite the fact that the workers’ comp insurance company issued a Notice of Denial, and the attorney for the workers’ comp insurance carrier filed an Answer to the Claim Petition denying all allegations, the Court found the issue to be decided by the WCJ to just involve the wage loss benefits. The workers’ comp insurance carrier acknowledged the injury and in the litigation was only disputing the wage loss benefits, the Court said. Since the injured worker was not successful on this issue, the litigation costs were properly denied.

As a practical issue, as attorneys representing injured workers in PA, we found this decision very disturbing. Essentially, the Court is finding a Notice of Denial to be a proper way for a workers’ comp insurance carrier to accept a medical claim. Silly us, we thought that was the entire purpose for the “medical only” Notice of Compensation Payable (which, by the way, was introduced by the Pennsylvania Bureau of Workers’ Compensation at the request of the PA insurance industry).

In reality, many of our clients have difficulty getting medical treatment if a claim is “accepted” by a Notice of Denial. Medical providers who are limited to the usual and customary English language (and are not fluent in Legalese) may not understand that “Denial” in this sense means exactly the opposite of what the dictionary suggests the word means. Also, too, is the question of what happens once the three-year Statute of Limitations expires. A Notice of Denial, is, by definition, a “denial” of the claim, despite what is written on the document. Is the medical aspect of the claim open at that point or not?

Frankly, use of the NCD to accept a claim is just plain wrong and should be eliminated. Since the Courts seem unwilling to do so, it may be time for the Pennsylvania legislature to step forward on the issue.

March 20, 2009

Injured Worker in PA Must Specifically Notify Employer of Subsequent Injury

Under the Pennsylvania Workers’ Compensation Act, an injured worker is generally covered for all of the effects of the work injury. Things that would not have happened “but for” the work injury often can be included in the workers’ compensation case. Thus, typically, if an injured worker in PA has a car accident on the way to therapy (for the work injury), the injuries suffered in the subsequent car accident are also covered by workers’ comp.

A recent decision by the Commonwealth Court of Pennsylvania, Matthews v. Workers’ Compensation Appeal Board (WCAB), however, restricts this concept. The injured worker must provide evidence of each aspect of his or her claim, as with any PA workers’ comp claim. Here, Ms. Matthews hurt her knee at work in January, 2003, then had a car accident, while going to therapy for her knee, in September, 2003. Medical evidence showed the January, 2003 injury had healed, but Claimant was disabled from the injuries from the car accident. The Workers’ Compensation Judge (WCJ) found that the work injury should be expanded to include the injuries from the car accident, and awarded ongoing workers’ comp benefits.

On appeal, the WCAB reversed the decision of the WCJ, finding the car accident could not be considered part of the work injury because Claimant never gave notice to her employer of the car accident (though she did notify her employer of the original work injury to her knee). The Commonwealth Court of PA agreed with the WCAB.

The dissent noted that Claimant presented evidence that she was treating with the same panel physician as was treating the initial work-related knee injury. As such, went the dissent, the employer DID have notice of the motor vehicle accident. For the majority, though, this was not deemed sufficient.

Essentially, they are treating the car accident as an “aggravation,” which, under PA workers’ comp law, is a “new injury.” As such, one of the elements an injured worker must prove is that he or she gave notice of the injury within 120 days. As an attorney representing injured workers in Pennsylvania, this decision does not seem fair. The car accident is not a new injury (Ms. Matthews did not go back to work, so how could she have a new injury?). The car accident, to me, is simply a continuation of the existing injury (no different than when we add another diagnosis to an existing claim).

This decision will serve no purpose other than to punish those injured workers who do not get timely legal advice from an experienced Pennsylvania workers’ compensation attorney. There really, to me, is no valid reason to require additional notice for what is truly a continuation of the same injury.

March 17, 2009

Injured Worker’s Benefits Not Suspended in PA Workers’ Comp, When Released to Full-Duty Work But Employer Offers No Job

What happens when an injured worker in Pennsylvania is released by his or her doctor to return to work, without restriction, but the injured worker has no job waiting for him or her? Recently, the Commonwealth Court of PA answered this question and put a smile on the face of this PA workers’ comp attorney.

In Consol PA Coal Co. v. Workers' Compensation Appeal Board, the injured worker broke his arm. His treating orthopedic surgeon eventually released him to return to work, without restriction. Rather than offer him a job, the Employer instead filed a Petition to Suspend his workers’ compensation benefits. Employer took the position that if the injured worker had no physical limitations, the loss in wages could not possibly be due to the work injury.

The Commonwealth Court disagreed with the Employer (as had the Workers’ Compensation Judge and the WCAB below), holding that to win a Petition for Suspension, an Employer must prove a job was actually available to the injured worker. Without this evidence, the Employer could not prevail.

March 13, 2009

PA Workers’ Comp Insurer Gets Credit for Disability Pension without Evidence of Actual Amount Contributed by Employer

Section 204(a) of the Pennsylvania Workers’ Compensation Act entitles workers’ comp insurance carriers to an offset if the injured worker receives unemployment compensation benefits, Social Security Retirement benefits, severance benefits or pension benefits. Most of these benefits, and their offsets, are easily calculated. However, when one gets into the area of pensions, in particular “defined benefit” plans, things get more complicated.

In a “defined benefit” plan, the amount of money paid to the recipient is certain; therefore, the party funding the plan takes the risk of the plan not being adequately funded to make the necessary payments to recipients. The money paid into the plan is put into a general fund, which is then used to pay all recipients. Contrast this with a “defined contribution” plan, where the employer pays a certain amount on behalf of each employee, and that account is then used to only pay that employee. That employee then only receives the payments that his own account can support. Thus, the employee takes the risk of underfunding.

A Pennsylvania workers’ comp insurance company can only obtain an offset from a pension plan “to the extent funded by the employer directly liable for the payment of compensation.” The issue, then, becomes how much that employer funded the plan. This can get complicated in a “defined benefit” plan, where the injured worker was employed by multiple employers over his or her career.

On March 5, 2009, the Commonwealth Court of Pennsylvania decided Consolidated Coal Co. v. Workers’ Compensation Appeal Board, and addressed this very issue. In this matter, the injured worker was entitled to a “defined benefit” disability pension, as a result of working just over 31 years for various union employers. He worked over 13 years for the employer at which he was injured. Due to Claimant’s higher benefit rate while working for this employer, the actuary of the plan testified that 51.12% of the total monthly benefits from the plan were attributable to this employer. Thus, the workers’ compensation carrier wanted an offset of 51.12%.

The Commonwealth Court agreed with employer. Even though the actuary of the plan did not testify as to what amount of money the employer contributed to the plan (versus the amount the employee was paid out of the plan), the Court found the method used appropriate for “defined benefit” plans. Since the contributions go into a general fund, and not into an account for each individual employee, as with a “defined contribution” plan, this service-based method is appropriate to calculate the offset.

March 10, 2009

Appeal to PA Supreme Court Sought in PGW v. Workers’ Comp Appeal Board

As you may recall, in a recent blog entry, we mentioned the case of PGW v. Workers’ Compensation Appeal Board (Amodei). This was the case where the Commonwealth Court of Pennsylvania stated, unequivocally, that credit against pension benefits in PA workers’ comp is to be done on the net amount of the benefit, rather than the gross.

It has now come to our attention that the workers’ compensation insurance carrier in this case has filed a Petition for Allocatur with the Supreme Court of Pennsylvania, asking the State‘s highest Court to accept an appeal in this matter.

As always, we will keep everyone posted on developments in this, and any other, PA workers’ comp matter. We also want to remind folks that we are happy to answer questions regarding any Pennsylvania workers’ compensation issues. You can contact us by telephone or e-mail, through our firm website.

March 9, 2009

Bad Faith Finding in Modification Petition Causes Increased Burden of Proof For Reinstatement in PA Workers’ Comp

Ordinarily, when an injured worker in Pennsylvania has his or her workers’ compensation benefits modified or suspended, such as by a return to work, having the benefits reinstated to total disability is not difficult provided that the loss of such work is not due to the fault of the injured worker, and the work-related disability continues.

The situation is much different, however, when the injured worker’s PA workers’ comp benefits are modified or suspended due to “bad faith conduct.” As explained by the Commonwealth Court of Pennsylvania in a recent case, Ward v. Workers’ Compensation Appeal Board (WCAB), decided on March 2, 2009, if the injured worker’s benefits were modified due to bad faith, then the injured worker has the burden to prove his or her medical condition worsened such that he or she is no longer capable of performing the job which had previously been found to be available.

The claimant in Ward was injured in 1992. In 1999, the PA workers’ comp insurance company was successful in litigating a Petition to Modify benefits. Specifically, the Workers’ Compensation Judge (WCJ) found that jobs were available to claimant, within his physical restrictions, but that he did not apply for the jobs. The WCJ ordered the total disability benefits modified to “partial disability benefits.”

In 2006, the claimant filed a Petition to Reinstate his total disability benefits. This Petition failed, because no medical expert testified that claimant’s condition had changed such that he was no longer capable of performing the job the WCJ found to be available to claimant back in 1999. Had claimant returned to work, rather than having this “bad faith” finding against him, reinstatement may have been considerably easier.

March 3, 2009

Job Not “Available” to Injured Worker Because Medication May Cause Drowsiness

As an attorney representing injured workers in Pennsylvania, I find “no work” jobs to be one of the nastier and more insulting actions an employer can take. Like they sound, “no work” jobs are positions offered to injured workers by their pre-injury employers, where the injured worker is to sit at a desk and literally do nothing. One of the favorite tricks of nasty employers is to offer such a job, wait for the employee to fall asleep, then fire the employee for sleeping on the job.

Though Courts in PA have held that “no work” jobs are “real” jobs, and have suspended workers’ comp benefits to injured workers who refuse such jobs without reason, a recent case shows the PA Courts do recognize limits to such actions. In Channellock, Inc. v. Workers’ Compensation Appeal Board (Reynolds), the Commonwealth Court of Pennsylvania held that a “no work” job was not within the injured worker’s physical capabilities.

The injured worker was taking medications which made him drowsy. A Workers’ Compensation Judge found both the injured worker, and his doctor, credible on this point. The injured worker tried the “no work” job and fell asleep. The worker was threatened with termination if this happened again. The Court found that proved that the job required that Claimant stay awake and that the credible evidence showed Claimant cannot stay awake due to his medication. As such, the job was not available to the injured worker and workers’ comp benefits were to continue.

February 5, 2009

Credit Against Injured Worker’s Pension on Net Amount Rather Than Gross

The last major changes to the Pennsylvania Workers’ Compensation Act came in 1996. Among other things, workers’ comp insurance carriers were given a credit for some other benefits an injured worker might receive, such as unemployment compensation, severance benefits, Social Security Retirement benefits and pension benefits [Section 204(a) of the PA Workers’ Compensation Act]. These offsets were designed to avoid an injured worker receiving a “double” recovery.

As attorneys representing injured workers, we were disappointed when two cases were decided by the Commonwealth Court of PA, holding that these offsets were to be taken on the gross (before tax) amount of these benefits, rather than on the net amount. In fairness, if the injured worker is paying part of his benefits back for tax, he or she did not actually “receive” the entire benefit being offset. Indeed, then the injured worker in PA, in effect, is getting less in workers’ comp benefits than the amount the Pennsylvania legislature intended.

This issue was even more disturbing, and perplexing, when the Pennsylvania Bureau of Workers’ Compensation issued regulations, stating that the offsets under Section 204(a) should be on the net amount. These regulations were issued just before the first of the above-mentioned two cases, though neither case mentioned the regulations.

The good news is that the Commonwealth Court of PA decided the case of Philadelphia Gas Works v. Workers’ Compensation Appeal Board (Amodei) on February 4, 2009, finding that the offset for pension benefits is to be taken on the net amount. Though the previous two cases dealt with a different benefit (unemployment compensation in one, severance in the other), the Court seemed to treat all Section 204(a) offsets consistently. The Court, this time, looked at the regulation and gave the regulation full force and effect. Though the Court did not specifically overrule the previous two cases (as a three-Judge concurring opinion would have done), these previous cases would not seem to have much current effect.

Note, also, that the regulations additionally provide that if a gross credit is taken on a Section 204(a) offset, the injured worker can apply to the workers’ comp insurance carrier to be paid back the amount that was taxed (when the amount paid in tax is known).

January 19, 2009

Supreme Court of PA Reverses Workers' Comp Judge on Retirement Issue

As mentioned in a previous blog post, Pennsylvania Courts have become increasingly strict with regard to cutting off PA workers' compensation benefits to retired injured workers, even when the retirement is due to the work injury.

Those of us who represent injured workers' in PA workers' comp were surprised and excited when the Supreme Court of Pennsylvania issued a terse, one paragraph, Order in the case of Gray v. Workers' Compensation Appeal Board (WCAB), reversing Commonwealth Court of PA, the WCAB and the Workers' Compensation Judge (WCJ), and demanding that the claimant's workers' comp benefits be reinstated, "in light of the competent, uncontroverted evidence presented by Petitioner that her retirement from the work force was involuntary, and her increased, debilitating shoulder pain prevented her from continuing to work." We can only hope that the very strict punishment for retired injured workers in PA is lessening. As always, we will keep you updated on developments in this area.

January 15, 2009

Termination Petition Requires Proof of Actual Change of Condition in PA

As a Claimant’s lawyer, practicing exclusively in PA workers’ comp, I was thrilled when the Supreme Court of Pennsylvania decided Lewis v. Workers’ Compensation Appeal Board (WCAB) in 2007. The Court in Lewis limited a PA workers’ comp insurance company’s ability to continually file petitions to terminate a claimant’s workers’ comp benefits. Specifically, the Court held that a workers’ compensation insurance carrier in PA had to prove there was an actual change in condition from the previous adjudication of disability (again, for this case to be important, the injured worker had to have previously defended a Termination Petition).

There was some concern, however, with how the Commonwealth Court of Pennsylvania would interpret the Lewis decision. As we posted in a previous blog entry, the Commonwealth Court initially did properly follow Lewis. Last month, the Commonwealth Court of Pennsylvania set claimant’s workers’ comp attorneys’ minds at ease, when they issued a decision in Delaware County v. Workers’ Compensation Appeal Board. Here, like in Lewis, the workers’ comp insurance company lost a Termination Petition, then filed another Termination Petition. Finding the workers’ compensation insurance carrier’s doctor credible when he testified the injured worker had fully recovered from the work-related injury, the Workers’ Compensation Judge (WCJ) granted the Termination Petition.

On appeal, the Commonwealth Court of PA, vacated the termination and remanded to the WCJ (sent the case back to the WCJ for additional findings). The Court found that the WCJ had granted the Termination Petition in error, because it was not enough to simply find the workers’ compensation insurance carrier’s doctor was credible when he testified that the injured worker had fully recovered from her work injury. Instead, the Court said the WCJ must first decide whether the workers’ comp insurance company proved that the claimant’s condition had changed from the time of the first Termination Petition to the time of the second. Only after that finding is made can the WCJ decide whether the workers’ compensation insurer proved the injured worker had fully recovered.

November 28, 2008

Injured Worker in PA Barred From Coverage for Additional Work Injuries

Generally speaking, an injured worker in PA can ask a Workers’ Compensation Judge (WCJ) to review an accepted description of a work injury “at any time” (within the statute of limitations, of course) to amend those conditions for which the workers’ compensation insurance carrier should be responsible. In other words, usually, an injured worker, under the Pennsylvania Workers’ Compensation Act, can try to add more injuries to an accepted workers’ compensation case.

However, a recent decision by the Commonwealth Court of Pennsylvania put a significant hurdle in the path of an injured worker. On November 25, 2008, the Court decided Weney v. Workers’ Compensation Appeal Board (Mac Sprinkler Systems, Inc.).

In this case, the workers’ comp insurance company accepted a “left shoulder strain.” The injured worker filed a Petition to Review, to add a tear of the anterior labrum with large glenohumeral joint effusion, tendonitis or a partial tear of the supraspinatus/infraspinatus, minimal impingement, and biceps tenosynovitis, all in the left shoulder. The workers’ compensation insurance carrier agreed, and the parties executed a stipulation, providing that the work injury now included this more descriptive injury.

Mr. Weney then filed another Petition to Review, this time to add herniated discs in his cervical spine to the work injury. Since the records showed that Mr. Weney had neck problems at the time he was litigating the first Review Petition, the Court held that he was barred from litigating this second Review Petition.

This concept is called “technical res judicata” or “claim preclusion.” It happens when an identical issue, between identical parties, has already been decided. The troubling aspect of this case for us, as attorneys representing the injured worker, is that the neck problem was never litigated, or decided, in the first Review Petition. And, frankly, there was no reason to address the neck at that point, since the workers’ comp insurance carrier was agreeing to the left shoulder problem, and that problem was the immediate concern of Mr. Weney at that time.

The Court took pains to observe that technical res judicata applies to those claims actually litigated, as well as those that should have been litigated. This is a dangerous precedent, as it may mean that when we file a Petition to Review for a client, we may have to litigate every single condition which may be related to the work injury, or risk being barred from doing so in later litigation. Ultimately, it seems this will increase the complexity of litigating a Review Petition, which will just cause more of a strain on the workers’ compensation judicial system.

November 26, 2008

Psychological Injuries Require “Abnormal Working Conditions” in PA Workers’ Comp

Under the Pennsylvania Workers’ Compensation Act, physical injuries, like carpal tunnel syndrome, low back strain or a fractured arm, are treated differently than emotional/psychological injuries, like post-traumatic stress disorder (PTSD), depression or anxiety. To obtain workers’ comp benefits in PA for emotional/psychological injuries, the injury must result from an “abnormal working condition,” rather than a person’s subjective response to a normal working condition. What constitutes an “abnormal working condition” under Pennsylvania workers’ comp law varies depending on the job at issue and is the subject of many court decisions.

Recently, the courts in PA have been very demanding in what constitutes an “abnormal working condition.” For some professions, such as firemen, policemen and other emergency first responders, the courts have set the threshold extremely high, finding very little in those jobs could possibly be “abnormal.” Essentially, some jobs should expect the unexpected, the courts seem to say.

Typically, harassment or bad behavior by a boss will not reach the level of an “abnormal working condition.” In fact, one of my favorite quotes on this subject comes from a 1996 decision of the Supreme Court of Pennsylvania, “In assessing whether work conditions are abnormal, we must recognize that the work environment is a microcosm of society. It is not a shelter from rude behavior, obscene language, incivility, or stress.”

With this in mind, a recent decision by the Commonwealth Court of Pennsylvania, Community Empowerment Association v. Workers’ Compensation Appeal Board (Porch), decided November 25, 2008, was a pleasant surprise. In this case, the Claimant was a victim of both sexual and religious harassment, and suffered emotional and psychological injury as a result. A Claim Petition was filed, and was subsequently granted by a Workers’ Compensation Judge (WCJ). On appeal, the Court found these facts sufficient to rise to the level of an “abnormal working condition.”

While emotional and psychological injuries sometimes have a more difficult burden of proof than a typical physical injury under PA workers’ compensation law, an injured worker should be aware that such claims can still sometimes be successful. As with any work injury, it is critical to consult immediately with an attorney experienced in Pennsylvania workers’ compensation.

November 3, 2008

PA Workers’ Compensation – Where “Yes” Can Mean “No”

Though the case of Armstrong v. Workers’ Compensation Appeal Board was decided by the Commonwealth Court of Pennsylvania over a year ago, on August 27, 2007, this decision continues to both amaze and irritate those of us who limit our practice to representing the injured worker in PA workers’ comp cases.

Under Section 406.1 of the Pennsylvania Workers’ Compensation Act, the workers’ comp insurance carrier has 21 days to accept or deny a claim. Typically, and logically, acceptance of a claim is done by issuing a Notice of Compensation Payable (NCP) [or an Agreement for Compensation], and denial of a claim is done by issuing a Notice of Denial (NCD). Since this seems to make perfect sense, naturally, this is not necessarily how things work.

On a Notice of Denial, there are six boxes, or “bases of denial.” Essentially, the workers’ comp insurance company checks one or more of those boxes, indicating the reason or reasons for the denial. Box number four on an NCD states, “Although an injury took place, the employee is not disabled as a result of this injury within the meaning of the Pennsylvania Workers’ Compensation Act.” This is rather unnecessary, since there is also a “medical only” NCP, to be issued when the workers’ comp insurance carrier feels there is no disability from the work injury.

In Armstrong, an NCD was issued, and box number four was checked. One of the issues the Court faced was whether the Notice of Denial was actually a document accepting the case. In a decision that seems contrary to common sense, the Court held that a Notice of Denial, with box four checked, does indeed mean that the workers’ compensation insurance carrier accepted the claim. Logic only an appellate court could love.

October 23, 2008

Notice of a Work Injury in PA May be Given Even After 120 Days

Under the Pennsylvania Workers’ Compensation Act, an injured worker must give notice of his or her injury within 120 days of the injury. If this notice is not given within 120 days, a claim petition for workers’ comp benefits is barred.

When an injury is not known to be related to work, this time period may be extended. This is known as a “discovery rule.” In that case, notice must be given within 120 days of when the injured worker knows he or she has suffered a work injury.

A recent decision by the Commonwealth Court of PA, The Bullen Companies v. Workers’ Compensation Appeal Board (Hausmann), explored this issue. In this case, the injured worker was employed at a chemical plant for 17 years. The worker started getting treatment for kidney ailments in 2002, but did not notify his employer of a work injury until 2004, which the employer said was more than 120 days after the “injury” was suffered.

The Workers’ Compensation Judge (WCJ) found for the Claimant, and granted the Claim Petition. The Workers’ Compensation Appeal Board (WCAB) affirmed. The Commonwealth Court of PA also affirmed.

Importantly, the Commonwealth Court of PA, citing language from a decision of the Supreme Court of Pennsylvania, stating that the, “discovery rule ‘calls for more than an employee’s suspicion, intuition or belief; by its terms, the statute’s notice period is triggered only by an employee’s knowledge that she is injured and that her injury is possibly related to her job.’” Therefore, the 120 day period within which to give notice did not start until the injured worker was advised by a doctor that she had a work-related injury.

October 15, 2008

Another Case Shows Unreasonable Contest Attorney Fees in PA a Rare Occurrence

As we explained in a recent blog entry, under the Pennsylvania Workers Compensation Act, Section 440(a) to be exact, reasonable attorney fees are to be paid by the PA workers’ compensation insurance carrier, unless the workers’ comp insurance carrier proves it had a reasonable basis to contest the claim. By design, this was to be the rule; the exception would be when attorney fees were charged to the injured worker.

Unfortunately, this is not how things work in practice. In Costa v. Workers’ Compensation Appeal Board (Carlisle Corp.), decided by the Commonwealth Court of Pennsylvania on October 14, 2008, the workers’ comp insurance carrier was found to have a reasonable basis to contest a claim when their own doctor agreed a work injury had taken place.

How could the Court accomplish such a feat, you ask? Well, the workers’ compensation insurance carrier’s doctor felt the injured worker had suffered a neck strain, while the injured worker’s doctor felt he had herniated a disc in the cervical spine (this would help explain why the injured worker had neck surgery after the work injury). Thus, the Court felt that because the parties’ medical experts disagreed what diagnoses were related to the work injury, the workers’ comp insurance carrier had a reasonable basis to contest the injury.

From our position, as lawyers who represent injured workers in PA, the decision by the Court seems completely unfair. There was no dispute a work injury took place, yet the Court says the fact that the claim was entirely denied was “reasonable.” This, unfortunately, sends a bad message to employers and workers’ compensation insurance companies in Pennsylvania, stating loud and clear that denial of claims can generally be done without any cost or retribution to the employer or the workers’ comp insurance carrier. Is this the message we want sent while injured workers lie in the hospital beds, unable to work, without any income?

September 29, 2008

Unreasonable Contest Attorney Fees in PA Workers’ Comp

Under the Pennsylvania Workers’ Compensation Act, a workers’ comp insurance carrier has 21 days to accept or deny a claim. During that period, the workers’ comp insurance carrier is to investigate the claim. This both fair and clear.

The award of attorney fees under the PA Workers’ Compensation Act is supposed to be the rule. Only when the workers’ comp insurance carrier demonstrates that the they had a reasonable basis to deny the claim is an award of fees to be denied. This is how the law sets forth the process. Again, this seems both fair and clear.

Unfortunately, the reality is that unreasonable contest attorney fees are rarely ordered against the workers’ compensation insurance carrier. Even though the PA Workers’ Compensation Act, and the cases from PA Courts, show the workers’ comp insurance carrier must have a basis to deny a claim at the time the decision is made to deny the claim, Workers’ Compensation Judges (WCJs) rarely apply the law this way.

On September 26, 2008, the Commonwealth Court of Pennsylvania decided Hansen v. Workers’ Compensation Appeal Board, in which unreasonable contest attorney fees were denied. In this case, at the time the decision was made to deny the claim, the workers’ comp insurance carrier had five progress notes from the injured worker’s doctor. One of these notes made mention of the injured worker’s occupation, in discussing her carpal tunnel syndrome. None of the notes specifically stated the carpal tunnel was work-related. The workers’ comp insurance carrier denied the claim. The WCJ granted the claim, but denied unreasonable contest attorney fees. The injured worker appealed the denial of attorney fees.

On appeal to the Commonwealth Court, the decision of the WCJ, denying the unreasonable contest attorney fees was affirmed. The Court reasoned that the workers’ comp insurance carrier had a factual basis to deny the claim since the progress notes were vague, and the injured worker had performed similar work for other employers in the past. The Court apparently had no problem with the fact that the workers’ comp insurance carrier did not request the injured worker attend an Independent Medical Examination (IME) until after a lawyer was retained and litigation was begun.

To us, as lawyers who regularly practice in the area of PA workers’ comp, the Court has now switched the burden to the injured worker to show clear evidence of a work injury to the workers’ comp insurance carrier. Previously, based on the actual language of the Pennsylvania Workers’ Compensation Act, we believed the workers’ comp insurance carrier had a duty to investigate an injury once report of the injury had been received (since this is what the Act specifically states in Section 406.1). It now appears the workers’ compensation insurance carrier has much less of a duty to investigate report of a work injury than is written in the Act.

September 5, 2008

Pennsylvania Employer Barred From Using Alleged Failed Drug Test in Subsequent Workers’ Comp Case

In Erisco Industries, Inc. v. Workers’ Compensation Appeal Board (Luvine), decided by the Commonwealth Court of Pennsylvania on September 3, 2008, an employer unsuccessfully tried to defend a Claim Petition by saying Claimant failed a drug test and that the drug use led to the work injury. Under the PA Workers’ Compensation Act, intoxication of the injured worker can be an “affirmative defense” by the workers’ compensation insurance company. This means that the burden is on the workers’ comp insurance carrier to prove not only that the injured worker was intoxicated (by drug or alcohol), but that the intoxication caused the injury.

When Mr. Luvine filed his Claim Petition, the workers’ compensation insurance company tried to submit the results of a drug test that they alleged was positive for an illegal substance. Part of the evidence required by the workers’ comp insurance company is to show “chain of custody” regarding the drug test; basically, they must show the sample was properly collected, authenticated and controlled throughout the testing process. This is primarily applicable when the laboratory which tests the sample is not the party who obtained the sample. The Workers’ Compensation Judge (WCJ) rejected the drug test results because the workers’ compensation insurance carrier failed to prove chain of custody, and the WCJ granted the Claim Petition.

Eventually, Mr. Luvine was released back to work, but his employer refused to offer him a job, since he had (in their eyes) failed the drug test. The workers’ comp insurance carrier filed a Petition to Suspend the workers’ compensation benefits, because they said the reason the injured worker was having wage loss now was that he failed a drug test (and no longer was due to the work injury).

The WCJ granted the Suspension Petition. The Workers’ Compensation Appeal Board (WCAB), however, reversed the decision of the WCJ, because the issue about the drug test had already been decided in the initial Claim Petition. The drug test could no longer be used. When an identical issue, between identical parties, is decided once, it cannot be litigated again. This is known as res judicata or collateral estoppel. The Commonwealth Court of Pennsylvania affirmed the decision of the WCAB. The workers’ compensation insurance company had its chance to show the drug test was valid and failed. They cannot come back in another litigation and try the issue again.

September 3, 2008

Reinstating in PA Workers’ Comp After Benefits are Terminated

One of the most difficult burdens an injured worker in Pennsylvania faces is when he or she is trying to reinstate PA workers’ compensation benefits after a Workers’ Compensation Judge (WCJ) has terminated such benefits. Since the granting of a Termination Petition means that the WCJ has found the claimant fully recovered from the work injury, there is a logical problem to later show the same injured has “recurred.”

A recent decision by the Commonwealth Court of Pennsylvania, National Fiberstock Corp. v. Workers’ Compensation Appeal Board (Grahl), shed some light on the actual burden a claimant faces in this situation. In short, the claimant must prove that, after the date the WCJ found there was a full recovery, there was a change (a worsening) of that physical condition. A previous workers’ comp decision by the Court noted that this change must be proven “by precise and credible evidence of a more definite and specific nature than that upon which initial compensation was based.”

Obviously, this is a very difficult burden for the injured worker to reach. But, as the Grahl decision shows, the burden is hardly impossible. In the Grahl case, the injured worker won her case by proving her carpal tunnel syndrome had recurred, using the doctor’s physical examination (which showed atrophy, or shrinking of the muscle) and electrodiagnostic testing (EMG test). It is this type of objective proof of the change in her condition which won the case.

One of the arguments made by the workers’ comp insurance company was that Ms. Grahl’s doctor was not capable of testifying, because he did not see her until after the Termination Petition was granted by the WCJ (so he could not have known her condition at that time). The Court rejected this argument, since the doctor accepted and assumed that claimant was fully recovered when so found by the WCJ.

It is also important to note that this difficult burden flies both ways, as the Court also observed. When a workers’ comp insurance carrier loses a Termination Petition, the workers’ comp insurance company must prove a change in condition to win a later Termination petition. For more on this burden on the workers’ comp insurance carrier, see Lewis v. Workers’ Compensation Appeal Board (Giles & Ransome, Inc.)

August 25, 2008

Injured Worker in PA Can Be a “Traveling Employee” Even if Worker Has Multiple Employers

Under the PA Workers’ Comp Act, generally speaking, a worker is not eligible for Pennsylvania workers’ compensation benefits when he or she is commuting to work. Under the law, the worker is not “in the scope of employment” at that time. One exception to this rule is for “traveling employees,” who are usually in the scope and course of their employment while moving from place to place. Obviously, it is advantageous for an injured worker who is hurt commuting to work to be found to be a “traveling employee.”

In a recent case, Jamison v. WCAB (Gallagher Home Health), the Commonwealth Court of Pennsylvania held that a home health nurse, who was hurt commuting to her assignment, was a traveling employee, despite the fact she worked for three different employers (sometimes all on the same day). The Workers’ Compensation Judge (WCJ) had found that Claimant was not a traveling employee, because she could be working for any of her three employers on any given day. As such, the WCJ denied the Claim Petition.

In reversing the WCJ, the Court found that claimant was a traveling employee with regard to her home health nurse job (the issue of multiple employers was essentially irrelevant). Once found to be a traveling employee, claimant was entitled to a presumption that she was working for her employer at the time she was driving from her home to the patient’s house. To prevail and defeat the claim, the workers’ compensation insurance company would have to prove the claimant abandoned her duties for the employer (for instance, by proving that claimant was actually on her way to work at one of her other jobs). Since the workers’ comp insurance carrier failed to prove this, the WCJ erred in denying workers’ compensation benefits to claimant.

August 20, 2008

IRE in PA Workers’ Comp Cannot be Done Until Injured Worker Reaches MMI

Under the most recent amendments to the Pennsylvania Workers’ Compensation Act, passed in 1996, once an injured worker in PA has received total disability benefits for 104 weeks, the workers’ comp insurance company can obtain an Impairment Rating Evaluation (IRE). If the work-related injury results in a whole body impairment rating of less than 50% (as almost all injuries do – this is an impossibly high standard), the PA Workers’ Compensation Act says the injured worker is changed from “total” disability status to “partial” disability status.

While this change from total to partial disability status does not change the amount of workers’ compensation benefits the injured worker receives, it does start the clock running regarding how long the benefits can be received. Partial disability benefits in PA are payable for a maximum of 500 weeks.

I go through this background, so that you understand the significance of a recent case decided by the Commonwealth Court of Pennsylvania, Combine v. WCAB (National Fuel Gas Dist. Co.). In this case, the Court held that a PA workers’ compensation insurance company cannot get an impairment rating until the IRE doctor first determines that a claimant has reached “maximal medical improvement” (MMI). Any obstacle in the path of the insurance carrier is certainly a benefit to claimants.

According to the American Medical Association’s Guides to the Evaluation of Permanent Impairment, which are used in Pennsylvania to determine impairment ratings in workers’ comp:

“MMI represents a point in time in the recovery process after an injury when further formal medical or surgical intervention cannot be expected to improve the underlying impairment. Therefore, MMI is not predicated on the elimination of symptoms and/or subjective complaints. Also, MMI can be determined if recovery has reached the stage where symptoms can be expected to remain stable with the passage of time, or can be managed with palliative measures that do not alter the underlying impairment substantially, within medical probability…”

When an injured worker has been out of work for 104 weeks, or when an IRE is sought by the workers’ comp insurance company, it is important for the injured worker to discuss his or her specific case with an experienced PA workers’ comp attorney.

August 8, 2008

Expert Medical Evidence Necessary to Prove Disability in PA Workers’ Comp

A recent decision by the Commonwealth Court of Pennsylvania, Albert Einstein Healthcare v. W.C.A.B. (Stanford), held that an injured worker seeking Pennsylvania workers’ compensation benefits must present expert medical evidence to prove disability. The testimony of the injured worker alone, unless the injury and the disability are obviously connected, will not be enough.

In this case, the claimant testified that she stopped working, due to the work injury, on October 21, 2002. The medical expert who testified in the workers’ comp case on her behalf did not see her until December 17, 2003. The Workers’ Compensation Judge (WCJ) found the testimony of claimant and her doctor both credible, but found that workers’ compensation benefits could not be awarded until December 17, 2003, as there was no competent medical evidence of her disability until that date (when she was seen by the doctor).

On appeal, the Pennsylvania Workers’ Compensation Appeal Board (WCAB) modified that portion of the decision of the WCJ and ordered that PA workers’ comp benefits should start as of October 21, 2002, based on the credible testimony of the claimant.

The Commonwealth Court of Pennsylvania then reversed the WCAB, reinstating the original decision of the WCJ – PA workers’ compensation benefits could not start before December 17, 2003. The Court said that the connection between the injury and the disability was not obvious (and this would certainly vary from case to case, depending on the circumstances in any particular case), and that, therefore, competent medical evidence was required. The only medical evidence in the case was the deposition of claimant’s medical expert, who did not see claimant until she had already been out of work for over a year.

This case highlights the importance of having an attorney who is familiar with all the quirks and nuances of the Pennsylvania Workers’ Compensation Act. This set of laws is quite tricky for any attorney who does not practice in the area of PA workers’ comp on a frequent basis. This is exactly the reason that we at Brilliant & Neiman LLC limit our practice to only handling Pennsylvania workers’ compensation matters.

August 7, 2008

PA Court Addresses Notice Requirement for Work-Related Hearing Loss

Under the PA Workers’ Compensation Act, an injured worker must give his or her employer notice of the injury within 120 days of the injury. If notice is not given within 120 days of the work injury, a workers’ comp claim for the injury will be barred. This issue becomes somewhat more complicated when the injury is one which occurs over a period of years, such as a noise-induced hearing loss.

A recent case decided by the Commonwealth Court of Pennsylvania, Crompton Corp. v. W.C.A.B. (King), found that the requirement of giving notice is triggered only when an injured worker is told by a doctor that he or she has suffered a loss of hearing as a result of exposure to noise at work. Until an injured worker is advised of this, there is no requirement that notice be given. The fact the injured employee may suspect, or even believe, that he has a work-related hearing loss is not enough to trigger the start of the 120 day notice period.

August 4, 2008

Psychological Injury Can Result From Work-Related Physical Injury

Many times in Pennsylvania workers’ comp cases we see an injured worker devastated by a physical injury. Once a provider for his or her family, the injured worker may find themselves home, unable to work, do any chores around the house or take part in hobbies or pleasurable activities. Frequently, this can lead to emotional strain in the household. This dramatic change in an injured worker’s life often leads to psychological symptoms, such as depression and anxiety. When the depression and anxiety results from a work-related injury, in PA, the new psychological condition can be added to the workers’ compensation case.

While case law has changed over the years, as to how long an injured worker has to add more injuries or diagnoses to a workers’ compensation case in Pennsylvania, a recent case from the Commonwealth Court of Pennsylvania has confirmed that a workers’ comp claimant in PA can file a Petition to add a psychological condition to an accepted physical injury any time within three years of the latest payment of PA workers’ compensation benefits.

Though the claimant in this recent case, Campbell v. WCAB (Pittsburgh Post Gazette), ultimately lost in his attempt to add a psychological injury to his accepted physical injury, the Court disagreed with the Workers’ Compensation Judge that the claimant waited too long to file his Petition. The Court concluded that the Workers’ Compensation Judge was wrong about the statute of limitations, but the Workers’ Compensation Judge also found the medical evidence submitted by claimant not credible, so claimant still lost.

July 25, 2008

Total Disability PA Workers’ Compensation Benefits Continue For Injured Man Who Lost Both Arms

Ordinarily, an injured worker in Pennsylvania cannot receive both workers’ compensation total disability benefits and also wages. Generally speaking, if an injured worker in PA has returned to work, he or she is no longer, by definition, “totally disabled.” The injured worker may be entitled to partial workers’ compensation benefits (if a loss in earnings continues), but would not be entitled to total disability benefits.

A rare exception to this rule was recently addressed by the Commonwealth Court of Pennsylvania on July 22, 2008, when the Allegheny Power Service Corp. v. WCAB (Cockroft) decision was rendered.

Total disability benefits under the Pennsylvania Workers’ Compensation Act are paid under Section 301(a). “Specific loss” benefits (benefits to compensate for the loss of use of a body part) are paid under Section 301(c). These specific loss benefits are paid regardless of whether there is any wage loss or not.

In Cockroft, the lines between total and partial workers’ comp benefits were blurred. Mr. Cockroft suffered a severe work injury, which cost him the use of both of his arms. Under Section 301(c)(23), the loss of both arms (or hands, feet, legs or eyes) “shall constitute total disability.” The interesting fact was that Mr. Cockroft had returned to work with his pre-injury employer. The workers’ compensation insurance carrier filed a petition to get a credit for the wages earned by Mr. Cockroft.

The Commonwealth Court found that Section 301(c) of the Pennsylvania Workers’ Compensation Act is intended to compensate the injured worker for the loss of use of his or her body part or parts, and not to replace lost wages. Therefore, the Court found that, under these rare circumstances, the injured worker could receive total disability workers’ compensation benefits under Section 301(c)(23), as well as receive his wages, without offset or reduction.

July 22, 2008

Termination of Workers’ Compensation Benefits in PA May Require Change of Condition

Not that long ago, a Pennsylvania workers’ compensation insurance company could terminate the benefits of an injured worker anytime they found a doctor to say the injured worker had fully recovered from his or her work injury. This encouraged the workers’ compensation insurance carriers to file Termination Petition after Termination Petition, until they found a doctor the Workers’ Compensation Judge believed. Fortunately, this is no longer the case in PA. The case that allowed such a luxury by the workers’ compensation insurance carrier, King v. WCAB, was overruled by the Pennsylvania Supreme Court in Lewis v. WCAB.

The law now, confirmed by the Commonwealth Court of Pennsylvania in Prebish v. WCAB, decided on July 14, 2008, is that the workers’ comp insurance company must have an opinion that the condition of the injured worker has changed since the last termination was adjudicated. This keeps the workers’ compensation insurance carriers from harassing the injured worker by filing an endless stream of Termination Petitions. To learn how to avoid being the victim of continued litigation by the workers’ compensation insurance carriers, contact an experienced Pennsylvania workers’ comp attorney.

July 11, 2008

Workers’ Comp Insurer in PA Has Absolute Right to Subrogation

While, in Pennsylvania, an injured worker generally cannot sue his or her employer for causing the injury, the injured worker is free to sue a third party. For example, the injured worker could file an action against a manufacturer of a product which caused the injury, or another driver who caused an accident. When an injured worker receives a settlement or a verdict leading to the recovery of money from a third party, Section 319 of the Pennsylvania Workers’ Compensation Act says the workers’ compensation insurance carrier is entitled to be repaid all or part of the benefits the carrier paid to the injured worker.

Though the goals of Section 319 are somewhat logical – to keep a party from receiving a double benefit, the result of this law is often troublesome. In effect, between the repayment made from the recovery, and the credit the workers’ compensation insurance carrier enjoys against future wage and medical benefits, the injured worker often winds up netting absolutely nothing from the third party case. Considering that the Pennsylvania Workers’ Compensation Act does not provide for any compensation for pain and suffering, it seems terribly unjust that the injured worker can recover money in a third party case, intended to compensate for pain and suffering, and yet end up netting nothing.

Recently, the Commonwealth Court of Pennsylvania decided the case of Gorman v. WCAB. Here, the claimant settled his workers’ comp case. At that time, he was not pursuing a third party suit. In the Compromise & Release Agreement (the document used when a workers’ compensation case is settled in PA), the parties stated that there was no lien for any third party case. After the workers’ compensation settlement was done, the claimant successfully pursued a third party case and recovered money.

The workers’ compensation insurance carrier filed a petition with the Pennsylvania Bureau of Workers’ Compensation to recover some of the money claimant received in the third party case. The claimant opposed this recovery, because, in the Compromise & Release Agreement, the workers’ compensation insurance carrier gave up their rights to any money.

Finding that the workers’ compensation insurance carrier was not aware of the third party case at the time the workers’ comp case was settled, the Court held that the right to recovery could not have been given up. The Court did say that the right of recovery can be reduced, or waived entirely, by a workers’ compensation insurance carrier, but such a reduction or waiver must be made with knowledge of what is being given up. The right of the workers’ compensation insurance carrier to subrogation is absolute and cannot be lost without a voluntary decision to do so.

July 8, 2008

Medical Bills In PA Workers’ Comp May Be Payable Even When Not Submitted On Proper Forms

As a general rule, the Pennsylvania Workers‘ Compensation Act requires medical providers to submit their bills to the workers’ compensation insurance carrier on the correct forms. Again, the usual rule is that the workers’ comp insurance carrier is not required to pay bills until they are submitted on the proper forms (and until supporting documentation is provided).

A recent decision by the Commonwealth Court of Pennsylvania, however, confirms the beliefs of us Pennsylvania workers’ compensation attorneys, who feel this technical step is not always necessary. In Shelton v. WCAB, decided by the Court on June 26, 2008, the workers’ compensation insurance carrier was ordered to pay medical bills even though the bills were not submitted on the proper forms.

In this case, the Court drew a distinction between the situations when the claim has already been accepted as opposed to one where there has never been liability of the workers’ compensation insurance carrier established. When the liability of the workers’ compensation insurance carrier has not yet been established, then bills must be on the proper forms. When we are dealing with an accepted claim, then this technicality may not be necessary.

June 26, 2008

Workers Compensation Decision on IRE Vacated by Commonwealth Court

In a previous blog entry, I mentioned the April 28, 2008 decision by the Commonwealth Court of Pennsylvania in Diehl v. WCAB, which greatly limited what a workers’ compensation insurance carrier in Pennsylvania can do with an Impairment Rating Evaluation (IRE). This decision was very favorable to the injured worker. Unfortunately, on June 24, 2008, the Commonwealth Court of Pennsylvania issued an order, and granted the workers’ compensation insurance company’s application for reargument, and vacated the prior decision. This means that, for now, the law returns as it had been before the Diehl decision was issued (meaning the workers’ comp insurance company does NOT have to show job availability when trying to have benefits changed to partial based on an IRE).

Though there will be reargument on this case, and a new decision will be issued, many of us Pennsylvania workers’ compensation attorneys doubt that the new decision will be as favorable as the one which has been vacated. We will, of course, post about the new decision when it is made.

June 4, 2008

PA Injured Worker Can Lose Workers’ Comp Benefits When Receiving a Notice

Many injured workers in Pennsylvania know not to sign a document they receive from the workers’ compensation insurance company without checking first with an experienced workers’ compensation attorney. Unfortunately, few injured workers are aware that some documents exist in the Pennsylvania Workers’ Compensation Act which can cause workers’ comp benefits to be reduced, or stopped, even if the documents are NOT signed by the injured worker.

When an injured worker returns to work in PA, he or she is still entitled to workers’ compensation benefits if there is still a loss in earnings (maybe the modified job pays less per hour, or offers fewer hours). The workers’ compensation insurance company must take some action if it wishes to reduce, or stop, weekly compensation benefits. In the old days, the workers’ compensation insurance company would have to file a Petition for Modification or Suspension, and litigate the issue. This is no longer the case.

These days, the workers’ compensation insurance company can simply file a Notification of Modification or Suspension, which contains an affidavit that the injured worker has returned to work, whether at pre-injury or reduced wages. If the Notification of Modification or Suspension is not “challenged” (appealed) by the injured worker, the Notification of Modification or Suspension has the same legal effect as if the injured worker signed a Supplemental Agreement, agreeing that the injured worker did return to work at those wages.

The challenge of the Notification of Modification or Suspension must be filed by the injured worker within 20 days of when the injured worker received the Notification of Modification or Suspension. According to a recent case in the Commonwealth Court of PA, Wawa v. W.C.A.B. (Seltzer), the date the injured worker received the Notification of Modification or Suspension is a finding of fact to be made by the Workers’ Compensation Judge (and will not be disturbed on appeal, if supported by “substantial evidence”).

This is yet another danger to the injured worker, who may be unaware that valuable rights can be lost simply by not taking action. It is very important that the injured worker be fully informed of the potential pitfalls contained within the Pennsylvania Workers’ Compensation Act.

June 2, 2008

Supreme Court of PA accepts Appeal on Amending Description of Injury on NCP

In an earlier blog entry, I explained the process of workers’ compensation appeals in Pennsylvania. Since the Supreme Court of PA can accept only those appeals it wishes, very few workers’ compensation cases are heard by the Supreme Court of Pennsylvania.

Unfortunately, on May 19, 2008, the Supreme Court of Pennsylvania announced that they have accepted the appeal in Cinram Manufacturing, Inc. v. W.C.A.B. (Hill), which had been decided last year by the Commonwealth Court of Pennsylvania. I say “unfortunately” because the decision had been favorable to injured workers, and seemed based on common sense.

In making its decision, the Commonwealth Court of PA found that a Workers’ Compensation Judge in Pennsylvania had the power to add to the description of injury, even if the injured worker did not file a Petition to Review the Notice of Compensation Payable (NCP). For example, in this case, a Petition for Termination was the only petition filed.

Previous decisions of the Supreme Court of Pennsylvania, in years’ past, suggested that a Petition to Review the NCP would have to be filed for the Workers’ Compensation Judge to be able to amend the description of injury. On the other hand, many cases have also noted that the form of the pleadings is not fatal in PA workers’ comp, and that a Workers’ Compensation Judge is usually able to decide the case based on the evidence presented, generally without regard to the petitions actually pending.

Creating more strict requirements only makes PA workers’ compensation more dangerous for the unwary. We will keep you posted on this, and other decisions, as they happen.

May 23, 2008

Bankruptcy of Workers’ Compensation Insurer in Pennsylvania Does Not Preclude Claim

A common fear with an injured worker is the impact of his or her employer, or the workers’ compensation insurance carrier, filing for bankruptcy. In Pennsylvania, an injured worker need not be concerned with such a development. Whether it is the bankruptcy of the employer, or the workers’ compensation insurance carrier, in PA, workers’ compensation benefits should not be disturbed.

When a party files for bankruptcy, which is governed by Federal law, the main purpose (or at least the immediate purpose) is the protection of the “automatic stay,” provided by Section 362(a)(1) of the Federal Bankruptcy Code, 11 U.S.C. §362(a)(1). The “automatic stay” causes any collections efforts (including any litigation) to be stopped. A creditor usually must apply for permission with the bankruptcy court, in order to have the stay lifted. Only if the request is granted, and the stay is lifted, can the creditor take any action on the debt (including litigation). The automatic stay allows payments from the bankrupt party to stop. This would, of course, be catastrophic for an injured worker who relies on Pennsylvania workers’ comp benefits.

Workers’ compensation laws are State laws, as opposed to Federal law, such as bankruptcy. One of the exceptions to the “automatic stay” is an exercise of a State’s “police powers,” under 11 U.S.C. §362(b)(4). The Commonwealth Court of Pennsylvania has recently confirmed that “the administration of worker’s compensation claims by the State … is a valid exercise of a governmental unit’s regulatory power, and is exempt from the automatic stay.” Pope & Talbot v. W.C.A.B. (Pawlowski), decided on May 21, 2008. Therefore, workers’ compensation benefits in PA are usually to be paid regardless of the filing of bankruptcy. Similarly, litigation in workers’ compensation cases in Pennsylvania may continue, despite the bankruptcy filing.

In years past, if an employer in PA failed to carry Pennsylvania workers’ compensation insurance (which is a crime in Pennsylvania), and that employer filed for bankruptcy, the injured worker may have been left out in the cold. Fortunately, as part of Act 147, passed by the Pennsylvania Legislature in 2006, the Uninsured Employers’ Guaranty Fund (UEGF) was created. The UEGF, funded by payments from all workers’ comp insurance companies in PA, steps in when there is a claim against an uninsured employer (regardless of whether that employer is bankrupt). This fund provides a measure of security for the injured worker who, unknown to the worker, is employed by a company who fails to carry the required workers’ comp insurance.

May 21, 2008

Pension Causes PA Workers’ Comp Benefits to Stop

As you may recall, last month I brought up the case of Mason v. WCAB (Joy Mining Machinery), in which the Commonwealth Court of PA punished an injured worker merely for taking his pension. In that case, the Court had said workers’ compensation benefits will be suspended, unless the injured worker shows either that he or she is disabled from all work, or that he or she is actively seeking work.

The Commonwealth Court of Pennsylvania has struck again, in Penn State v. WCAB (Hensal), decided on May 19, 2008. In this case, the injured worker argued that his workers’ comp benefits should not be stopped, even though he took his pension, because he was actively seeking work. As proof, the injured worker testified that he signed up for Career Link (a program run by the State of Pennsylvania) and periodically checked websites and newspaper ads, but found no work. Though the Workers’ Compensation Judge (WCJ), and the Workers’ Compensation Appeal Board (WCAB), agreed and found the injured worker’s efforts showed that he is truly looking for work and has not “voluntarily removed himself from the labor market,” the Commonwealth Court of Pennsylvania disagreed, and ordered the workers’ compensation benefits stopped.

Specifically, The Court said:

“Searching the Internet and newspaper ads for jobs, without more, does not constitute a job search; it constitutes “surfing” the web and reading the newspaper – it is window shopping. To show that he was engaged in a good-faith effort, a claimant has to show that he applied or sent applications for employment or other indicia that he was actively applying for employment.”

This case proves instructive on how to limit the damaging effects of taking a pension. Remember, too, that aside from this issue (of whether the PA workers’ compensation benefits are suspended due to the change in status), there is also the issue of the workers’ compensation insurance carrier taking a credit against the pension that is being taken. This process is littered with pitfalls which can permanently harm an injured worker’s rights under the Pennsylvania Workers’ Compensation Act. Before making a decision, like whether to take a pension, which could impact your workers’ compensation benefits, it is always a good idea to consult with a lawyer experienced in PA workers’ compensation matters.

May 15, 2008

Job Referrals Must Be Actually Available to PA Workers’ Compensation Claimant

Experienced Pennsylvania workers’ compensation attorneys frequently are involved in cases where an injured worker, no longer able to perform his or her pre-injury job, is referred to other jobs in the community by a vocational counselor, at the request of the workers’ compensation insurance carrier. As lawyers who limit our practice to PA workers’ comp, we love to see cases reduce the power of the workers’ compensation insurance carriers to abuse this process.

Recently, on May 12, 2008, the Commonwealth Court of Pennsylvania decided PA Department of Corrections v. WCAB (Zvara). In this case, the claimant, who does not drive, was referred to five jobs, which were said by the workers’ compensation insurance carrier to be within the physical limitations of claimant. Claimant did not apply for any of the jobs (Often, the failure to apply for any of the referred jobs is nearly certain to cause the case to be lost). In this situation, however, the Court found that the workers’ compensation insurance carrier did not meet its burden of proof. Specifically, the workers’ compensation insurance carrier failed to prove public transportation was compatible with the hours of the offered jobs, or that the prospective employers would modify the hours of the jobs to accommodate the schedules of public transportation. The mere fact that the referred jobs were accessible by public transportation, without more, was not enough. Since the workers’ compensation insurance carrier did not meet its burden of showing jobs “available” to the claimant, the burden never shifted to claimant, to prove he or she applied for each job in good faith. As such, the Petition for Modification was denied.

May 13, 2008

Specific Loss Benefits Require Medical Evidence in PA Workers’ Comp

An injured worker in Pennsylvania is generally entitled to be compensated for his or her lost wages (called “indemnity” benefits), and have medical expenses related to the work injury paid. When an injured worker loses the use of certain parts of the body, payment can also be obtained (this is called “specific loss” benefits). Included in “specific loss” benefits is compensation for scarring, or “disfigurement,” on the head, face or neck.

Under the Pennsylvania Workers’ Compensation Act, in Section 306(c), there is a list of body parts, and how many weeks of workers’ compensation benefits an injured worker would receive for the loss of each. For example, the loss of a hand leads to a payment of 335 weeks of workers’ compensation benefits. A foot is 250 weeks. Other amounts are listed for forearm, leg, lower leg, eye and more. Payment for fingers depends upon which finger is involved (from 100 weeks for a thumb to 28 weeks for the little finger). The Act also includes some period of additional compensation, called a “healing period.” For example, the lost hand adds a healing period of 20 weeks and the lost foot leads to an additional 25 weeks. Compensation for scarring on the head, face or neck is completely within the discretion of the Workers’ Compensation Judge, who can award from zero to 275 weeks, depending on how disfiguring the scarring is felt to be.

To obtain specific loss benefits in PA workers’ compensation, an injured worker must show that the part of the body at issue has been “permanently” lost “for all practical intents and purposes.” The quoted portions above are usually where disputes exist, often requiring the decision of a Workers’ Compensation Judge.

While the testimony of the injured worker is important in determining whether there is a loss of use “for all practical intents and purposes,” according to a recent case decided by the Commonwealth Court of Pennsylvania, medical evidence must also be presented in support of the injured worker. In Jacobi v. W.C.A.B., decided by the Court on February 12, 2008, the claimant testified about how he is limited in using his right middle finger (which had been caught in a freight door and subject to three surgeries, the last of which involved the placement of a screw), but the claimant did not present any medical evidence which stated that the use of the finger has been lost “for all practical intents and purposes.” The Court reversed the decision of the Workers’ Compensation Judge, who had awarded benefits to the claimant.

May 6, 2008

Employer Need Not Show Job Not Available to Injured Worker in PA

One of the tools a workers’ compensation insurance company has in PA to reduce, or “modify,” workers’ compensation benefits is the Labor Market Survey (LMS) (Also called “Earning Power Assessment” (EPS)). This is used when the injured worker has physical limitations which prevent a return to the injured worker’s previous occupation.

As you can see by looking at Section 123.301 in the Regulations issued by the Pennsylvania Bureau of Workers’ Compensation, before an Employer can resort to using an LMS, the Employer must demonstrate that there is no job available with the Employer within the physical limitations of the injured worker . . . or maybe not.

Recently, the Commonwealth Court of Pennsylvania decided the matter of Rosenberg v. W.C.A.B. (Pike County), which dealt with this issue. The Court held, in a narrow 4-3 decision, however, that an Employer only had to address this issue if the injured worker offered evidence (which could just be testimony of the injured worker) that a job was indeed available with the Employer. Once that evidence was presented, then the Employer had the burden of proof to show no such job existed.

As the three Judges who dissented pointed out, this logic is blind to the fact that it is much easier for the Employer to show an absence of a suitable job than it is for an injured worker to show a job existed. One must wonder how an injured worker would know what is happening within the Human Resources department of their Employer (while the injured worker is home recovering from an injury yet).

This seems yet another case where the injured worker in PA gets the short end of the straw. Unfortunately, such a result seems to be happening all too frequently.

April 29, 2008

Impairment Rating Evaluation (IRE) in PA Workers' Compensation

To answer an often asked question, in Pennsylvania, there is no limit to how long an injured worker can receive total disability workers’ compensation benefits. However, as a practical matter, it is difficult to receive total disability benefits in PA for more than two years. After an injured worker in Pennsylvania has received total disability benefits for 104 weeks, the workers’ compensation insurance company can request the injured worker attend an Impairment Rating Evaluation (IRE).

An IRE is somewhat different than an Independent Medical Examination (IME), as the doctor who performs an IRE is selected by the Pennsylvania Bureau of Workers’ Compensation (the workers’ compensation insurance carrier selects the doctor in an IME). The doctor who performs the IRE will examine the injured worker and review records. Subsequently, the doctor will decide what percentage the injured worker is impaired from the work injury. This percentage is determined by guidelines developed by the American Medical Association.

If the injured worker is found to be less than 50% impaired by the work injury, the workers’ compensation insurance carrier may be able to have the status of the disability changed from “total” to “partial.” While this change does not effect the amount of workers’ compensation benefits the injured worker receives, it does put a time limit on how long the benefits can be received. An injured worker in PA can only receive partial disability benefits for a maximum of 500 weeks.

You will notice that I said the workers’ compensation insurance company “may” be able to change the status. If the workers’ compensation insurance carrier requests the IRE within 60 days of when the injured worker has received 104 weeks of total disability, the workers’ compensation insurance company need only file a Change of Status form and the status of benefits automatically changes from total to partial.

However, the situation is very different if the workers’ compensation insurance carrier requests the IRE after the 60 day period (after the 104 weeks of total disability). In that case, according to a recent decision by The Commonwealth Court of Pennsylvania, apparently, the workers’ compensation insurance carrier must actually prove some form of job availability to have the status changed to partial. This decision, in the case of Diehl v. W.C.A.B. (IA Construction), filed on April 28, 2008, makes the question of when the IRE request was made very important.

April 24, 2008

Workers Compensation Settlement in Pennsylvania Not Final Until Approved by a Workers' Compensation Judge

An injured worker in PA can settle both the wage loss and medical parts of his or her case by entering into a Compromise & Release Agreement. This is something which can only be done when both the injured worker and the workers' comp insurance company agree to settle the case. Neither side can force the other to settle a case. Once the parties agree to the terms of a settlement, a Compromise & Release Agreement must be prepared, detailing the terms of the settlement. Then, before the settlement is final, a hearing must be held before a Workers’ Compensation Judge, who must be satisfied that the injured worker understands the terms and conditions of the settlement.

Recently, the Commonwealth Court of Pennsylvania decided that a Compromise & Release Agreement could not be approved because the injured worker had died before a hearing to approve the settlement could be accomplished. This case, Miller v. W.C.A.B. (Electrolux), was decided on January 4, 2008.

Understand that settling a workers’ compensation case in Pennsylvania is a very complicated process. It is very important that you have an experienced workers’ compensation lawyer working for you, to make sure that you receive the maximum recovery possible, and that your rights be properly protected.

April 22, 2008

IME: Injured Worker in PA Not Required to Get EEG

We are often asked by injured workers about things related to Independent Medical Examinations (IME). The Pennsylvania Workers’ Compensation Act allows a workers’ comp insurance company to send an injured worker to a doctor of their choosing approximately twice a year. If an injured worker does not attend an IME, the workers’ compensation insurance company can file a petition to suspend workers’ compensation benefits.

Whether the IME is just a visit to be examined by the doctor the insurance company has selected varies by the case, though this does remain the situation in the vast majority of cases. The situation gets more complicated when the IME doctor asks that some additional testing be done on the injured worker. Whether the injured worker has to agree to this additional testing depends on the test at issue and the circumstances in that case.

According to a decision by the Commonwealth Court of Pennsylvania, an IME does include “ . . . all reasonable medical procedures and tests necessary to permit a provider to determine the extent of employee’s disability.” This was in the case of Coleman v. W.C.A.B. (Indian Hosp.), decided in 2004. The Court said the workers’ compensation insurance company must prove the test is necessary, has no more than minimal risk, and is not unreasonably intrusive. In that case, the Court found the injured worker did have to have an MRI done.

Recently, however, the Commonwealth Court of Pennsylvania found that an injured worker did not have to agree to an EEG test, which would have required the injured worker being in the hospital for 72 hours. The workers’ compensation insurance company did not show the likelihood the test would give useful information. This decision, in the case of Peters Township School District v. W.C.A.B. (Anthony), was decided April 2, 2008.

April 21, 2008

Injured Worker in PA Jeopardizes Workers’ Compensation Benefits by Taking Pension

Logic may make you think that if you are permanently disabled from your career as a result of a work injury, you are free to take your pension and continue receiving workers’ compensation benefits. Unfortunately, this is not the case in Pennsylvania, and whether to take a pension in a PA workers’ compensation case is a very important decision, which should only be done after discussing your particular situation with an experienced Pennsylvania workers’ compensation attorney.

When an injured worker starts taking his or her pension in PA, the workers’ compensation insurance company can argue that the injured worker is no longer entitled to workers’ compensation benefits, because the injured worker has “left the workforce.” The injured worker must then show a Workers’ Compensation Judge either that he or she is actually seeking employment or that he or she is not capable of performing any work at all (not just the injured worker’s old job, but any job in the entire labor market) as a result of the work injury. If the injured worker does not prove one of these two things, a Workers’ Compensation Judge can suspend (stop) the injured worker’s wage loss benefits (the weekly or bi-weekly checks). The injured worker’s right to medical treatment for the injury is not affected.

The case I recently saw that brought this situation to mind, Mason v. W.C.A.B. (Joy Mining Machinery), was decided by the Commonwealth Court of Pennsylvania on March 18, 2008.

This is yet another pitfall used by the workers’ comp insurance companies in Pennsylvania to cause workers’ compensation benefits to stop. The best defense an injured worker has is the representation of a law firm experienced in PA workers’ compensation matters.

April 20, 2008

Pennsylvania Workers’ Comp Insurance Pays for Cost of Wheelchair Accessible Van

In a recent decision favorable to injured workers in PA, the Supreme Court of Pennsylvania said that, under certain circumstances, a workers’ compensation insurance company must pay not only to modify a van to be wheelchair accessible, but to pay for the cost of the van itself. This is an important change in the law, because there had been an older case, finding the workers’ compensation insurance company was only responsible to pay for making a van wheelchair accessible (and not for the cost of the van itself).

The injured worker in this case, who was paralyzed in a work injury, was not able to get out of the house, even to medical appointments, without this special van. Fortunately, the Court saw the unfairness of making the workers’ compensation insurance company pay only to modify the van for a wheelchair, when the injured worker might then not even be able to afford buying the van itself. The Court said, “ . . . the van is crucial to restore some small measure of the independence and quality of life that existed before the work injury.”

This rule is probably limited to cases like this, involving a catastrophic injury. The Court also said the situation of the injured worker in each case needs to be examined. For example, is a new van required? Did the injured worker own a van before the injury? Was any automobile owned by the injured worker before the injury? The answers to these questions, and others, would determine whether the workers’ compensation insurance company would have to pay for the cost of the van in any future case.

This case is titled, Griffiths v. W.C.A.B. (Seven Star Farms, Inc.), and it was decided by The Supreme Court of Pennsylvania on March 19, 2008.